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June 15, 2018 Digests

Posted By Administration, Tuesday, June 19, 2018
Updated: Tuesday, June 19, 2018

Kansas Supreme Court

Attorney Discipline

NO. 118,758—JUNE 15, 2018

FACTS: After Davisson failed to appear at the hearing, a hearing panel determined that Davisson violated KRPC 1.3 (diligence), 1.4(a) (client communication), 8.4(d) (conduct prejudicial to administration of justice), Rule 207(b) (cooperation with disciplinary investigation), and Rule 211(b) (timely answer to formal disciplinary complaint). The disciplinary matter arose after Davisson was retained by a couple who wanted his help with filing a bankruptcy petition. Although the petition was filed and the clients completed their payment plan, Davisson did not answer their calls and provide the assistance they needed to receive a discharge. The clients filed a disciplinary complaint, but Davisson did not respond. Davisson also had complaints filed in other cases where he failed to respond to the disciplinary investigator.

HEARING PANEL: Despite receiving proper service, Davisson did not appear at the formal hearing. After finding that Davisson violated multiple conduct rules, the panel concluded that Davisson's failure to cooperate amounted to a bad faith obstruction of the disciplinary process. Finding no mitigating factors, the hearing panel agreed with the disciplinary administrator and recommended discipline of disbarment.

HELD: Davisson failed to appear for argument before the court. After considering the record plus the extra aggravator of his failure to appear, the court agreed that Davisson should be disbarred.



NO. 116,818—JUNE 15, 2018

FACTS: Scribner was employed by U.S.D. 492 until May 2015, when she was notified that her contract was not going to be renewed. Acting in accordance with statutory amendments to the teacher due process statutes, the school board did not give a reason for the decision or notify Scribner of her due process rights. Scribner believed that these omissions were unconstitutional, and she filed a motion for declaratory judgment asking the court to find that the statutory amendments were unconstitutional. The district court found that the statutory amendments were constitutional, as the change did not deny due process to the teachers. Scribner appealed

ISSUES: (1) Property interest in continued employment; (2) violation of employment contract

HELD: Scribner did not enjoy a vested right that could not be removed or altered through due process. The legislative process provides all the process that is due when legislation results in the deprivation of protected property interests. The legislation that stripped away the enhanced requirements for nonrenewal was not arbitrary. Although there were not any public hearings held prior to passage of the legislation, due process does not require a hearing before legislation is adopted. Because the board complied with the statute in effect at the time of Scribner's nonrenewal, there is no merit to her breach of contract claim.

STATUTES: K.S.A. 2017 Supp. 72-2251(a), -2252(a), -2252(b); K.S.A. 2014 Supp. 72-5437; K.S.A. 2013 Supp. 72-5436(a), -5436(b), -5437(a), -5438(a), -5445(a); K.S.A. 60-409, -412, 72-5436



criminal law—criminal procedure—jury instructions
state v. jarmon
sedgwick district court—affirmed
court of appeals—affirmed in part—reversed in part
No. 111,608—june 15, 2018

FACTS: Jarmon was convicted of felony burglary. Prior to sentencing, he filed a pro se motion for a new trial, based on alleged ineffective assistance of trial counsel. District court heard arguments and denied the motion, finding no basis for granting a new trial and finding an insufficient basis for replacing defense counsel. Jarmon appealed that decision, and claimed reversible error for jury to be instructed on burglary without including a definition of theft. In unpublished opinion, the Court of Appeals affirmed the conviction but reversed and remanded for a renewed hearing with new appointed counsel on Jarmon’s pro se collateral challenge to his conviction on the basis of ineffective assistance of counsel. State’s petition granted for review of the remand order. Jarmon’s cross-petition granted for review of the claimed instructional error.

ISSUES: (1) Omission of an instruction on elements of theft, (2) motion for new trial

HELD: Clearly erroneous standard applies because Jarmon did not object to the burglary instruction. Under facts in this case, the omission of an instruction on the elements of theft was harmless error, as a rational jury would have concluded that at least one of the reasons Jarmon went into the building was to steal property. State v. Rush, 255 Kan. 672 (1994), is factually distinguished.

            Court of Appeals treated Jarmon’s out-of-time motion for a new trial as a motion under K.S.A. 60-1507, and erroneously mandated appointment of new counsel for a collateral challenge that had no support in the record. Remand for a hearing on the motion for new trial or for replacement of counsel is inappropriate. Court of Appeals ruling on the motion for new trial is reversed. District court’s denial of the motion for new trial is affirmed.

STATUTES: K.S.A. 2012 Supp. 21-5801; K.S.A. 22-4506, -4506(b), 60-1507, -1507(b)


constitutional law—criminal procedure—criminal law—death penalty—evidence—juries—statutes—venue
state v. thurber
cowley district court—affirmed in part—Reversed in part—remanded
no. 102,605—june 15, 2018

FACTS: Thurber was charged with crimes arising from the 2007 death of a 19-year old victim. State filed notice of intent to seek the death penalty based on single aggravating circumstance the murder was committed in an especially heinous, atrocious, or cruel manner. Jury convicted Thurber of aggravated kidnapping, and capital murder based on combined theories of attempted rape and aggravated criminal sodomy. It also sentenced him to death. At 2009 sentencing hearing, district court found insufficient reason in the mitigation evidence to grant Thurber’s motion for a determination of intellectual disability. Thurber appealed claiming: (1) district court erred by admitting statement Thurber made after reinitiating contact with law enforcement after previously invoking right to an attorney; (2) prosecutorial error in guilt phase by providing jury with “imaginary script” during opening and closing arguments, telling jury the prosecutor was personally responsible for the case and Attorney General had determined death was the appropriate sentence, and stating premeditation could be “instantaneous;” (3) jury was not instructed it must be unanimous as to whether capital murder was based on attempted rape or aggravated criminal sodomy; (4) district court erred by denying challenges for cause during voir dire of two seated jurors; (5) insufficient evidence supported the oral verdict when bailiff misread the verdict form to incorrectly say “criminal sodomy” instead of “aggravated criminal sodomy” as the crime underlying capital murder; (6) testimony of six women who had previous encounters with Thurber should not have been admitted because it constituted improper character evidence or inadmissible prior crimes evidence; (7) witness identification for first time in courtroom was impermissibly suggestive; (8) error to allow victim’s mother’s testimony concerning personal details of victim’s life, including antemortem photograph of the victim; (9) district court erred by not sua sponte instructing jury on felony murder as a lesser included offense of capital murder; (10) district court’s denial of motion filed prior to voir dire to change venue violated Thurber’s Sixth Amendment right to an impartial jury; and (11) he was denied his constitutional right to be present at all critical stages of his criminal trial when district court on first day of guilt phase excused a juror who became ill and replaced that juror with first alternate juror without advising Thurber. Court also considers whether cumulative error denied Thurber a fair trial during the guilt phase. Concerning the penalty-phase proceedings, Thurber claimed in part the district court erred by denying his presentencing request for a hearing on whether he was intellectually disabled, as required by Atkins v. Virginia, 536 U.S. 304 (2002), and he attacked the Kansas statutory test for making such decisions.

ISSUES: (1) Invocation of right to counsel, (2) prosecutorial error, (3) multiple acts, (4) jurors challenged for cause; (5) sufficiency of evidence supporting the oral verdict, (6) character and prior crime evidence, (7) first time in-court witness identification, (8) victim’s good character evidence, (9) felony murder as lesser included offense, (10) change of venue, (11) lack of presence when juror excused, (12) guilt-phase cumulative error, (13) penalty phase denial of hearing on intellectual disability, (14) constitutionality of statutory test for determining if a defendant is intellectually disabled

HELD: District court erred by admitting Thurber’s statement to law enforcement. Applying rule in Edwards v. Arizona, 451 U.S. 477 (1981), Thurber reinitiated communication with a desire to talk about something other than the investigation. Under facts in case, however, this error was harmless in determining Thurber’s guilt.

            All allegations of prosecutorial error are examined, identifying specific missteps that were harmless under the facts in this case.

            Jury unanimity not required because this was not a multiple acts case. Attempted rape and aggravated criminal sodomy were alternative means of committing capital murder.

            Voir dire questioning of the two seated jurors is examined, discussing juror impartiality against Eighth Amendment standard, and reviewing juror’s acquaintances with victim’s friends and financial hardship. No abuse of discretion found in district court’s denial of motions to strike.

            No Kansas case has addressed whether the oral or written verdict controls. Absent strong indication the oral pronouncement better reflects the jury’s will, the jury’s written verdict controls. Under circumstances in this case, the written verdict clearly reflects the jury’s intent.

            The women’s testimony demonstrated behavioral patterns rather than a particular character trait as contemplated by K.S.A. 60-447. Also, K.S.A. 60-455 did not bar admission because the testimony was not evidence of prior criminal conduct or civil wrongs. Court refuses to adopt rule barring evidence in guilt phase that would not be relevant in sentencing.

            Court has not addressed whether a first time, in-court identification following an out-of-court failure to identify needs to be tested against reliability factors applicable in the traditional second prong of the out-of-court eyewitness identification analysis. Split of other jurisdictions noted. Under assumed error on facts of case, no reasonable possibility the verdict would have been different without the witness’ in-court identification.

            No abuse of district court’s discretion found. College dance scholarship evidence was relevant and probative. Additional detail of victim as high school valedictorian was extraneous but not a detail that would inflame jury passions or prejudices. Photographs was probative of victim identity, an element of the crime charged. And previous court opinions have allowed antemortem photographic evidence.

            Under K.S.A. 2016 Supp. 21-5402(d), felony murder is not a lesser included offense of capital murder.

            Claim that trial’s venue was constitutionally inappropriate due to presumed prejudice is rejected. Applying seven factors in Skilling v. United States,  561 U.S. 358 (2010), to Thurber’s  venue challenge based on community prejudice, only one factor weighs in favor of presumed prejudice, four weigh against it, one factor is inapplicable, and one factor is neutral.

            Under facts of case, assumed error including failure to follow replacement procedure under K.S.A. 22-3412(c), was harmless.

            Cumulative error did not substantially prejudice Thurber or deny him a fair trial during the guilt-phase proceedings. Thurber’s convictions are affirmed.

            Opinion discusses history of U.S. Supreme Court’s development of constitutional standard for determining whether a defendant is intellectually disabled (previously termed as “mentally retarded”), and of Kansas legislative responses. Review of district court’s 2009 determination in this not-yet-final criminal prosecution requires application of current constitutional standards and state statues. K.S.A. 2016 Supp. 21-6622(h) is unconstitutional as it pertains to the incapacity limitation, but that incapacity language is severable. K.S.A. 2016 Supp. 76-12b01(i) allows criminal defendants to establish sub-average general intellectual functioning by means in addition to standardized intellectual testing. Understood for Eighth Amendment purposes in a manner compatible with federal caselaw, this means the statute’s requirements are to be informed by—and cannot disregard—the clinical definition for intellectual disability currently used in the medical community, as recited in the caselaw. Under the unique circumstances of this case and the limited facts available for appellate review, remand is necessary. District court must reexamine Thurber’s motion based on applicable caselaw, current statutes, and current diagnostic framework used by medical community for determining intellectual disability. Thurber is not entitled to have his death sentence automatically converted to a life sentence due to the constitutional infirmity identified in K.S.A. 2016 Supp. 21-6622(h). Court retains jurisdiction over the remainder of Thurber’s penalty-phase appeal pending notification regarding outcome on remand.

DISSENT (Rosen, J.): Disagrees with majority’s decision to remand. The questions are neither so unique nor facts so limited that the outcome of that remand cannot be determined with sufficient certitude. Would uphold the district judge’s determination and proceed to important penalty phase issues without unnecessary delay.

DISSENT (Johnson, J.): With respect to the guilt phase, agrees with errors identified by the majority, but discerns more error. Prosecutor’s use of an imaginary script was intolerable; district court’s rehabilitative coaching of mitigation-impaired venire person undermined the fairness of the jury; a cautionary jury instruction on eyewitness testimony was legally appropriate and it was error not to give one; photograph of victim had zero probative value because element to be proved was the killing of a human being who could have been unidentified; in light of community survey results, fundamental fairness calls for change of venue. With respect to the penalty phase, majority’s remand order is unnecessary and faulty. Would reverse Thurber’s death sentence and remand for resentencing to life in prison without possibility of parole.

STATUTES: K.S.A. 2016 Supp. 21-5402(d), -6619(a), -6619(b), -6622, -6622(a), -6622(b), -6622(c), -6622(f), -6622(h), 76-12b01, -12b01(a), -12b01(d), -12b01(i); K.S.A. 2015 Supp. 21-6619(b), -6622(b); K.S.A. 2013 Supp. 76-12b01(i); K.S.A. 21-3438(a), -3439(a)(4), -3505(a), -4623, -4623(a), , -4623(e) , -4624, -4624(a), -4625(6), -4626(6), -4627(b), -4629, -4634, -4634(e), -4634(f), 22-2616(1), -3405(a), -3410(2)(i), -3412(c), 3421, 60-404, -407(f), -446, -447, -455, 76-12b01, -12b01(i)


Kansas Court of Appeals


NO. 117,439—JUNE 15, 2018

FACTS: Tillman filed a tort claim for wrongful birth after Dr. Goodpasture failed to diagnose several structural abnormalities in her baby's brain. The baby was born with severe and permanent neurological impairments. In bringing suit, Tillman claimed that K.S.A. 2013 Supp. 60-1906 – the statute which bars a cause of action for wrongful birth – violates Sections 5 and 18 of the Kansas Bill of Rights. In addition to monetary damages, Tillman wanted a declaration that the statute is unconstitutional. Dr. Goodpasture's motion for judgment on the pleadings was granted after the district court determined that the tort of wrongful birth did not exist at the time the Kansas Constitution was adopted. Tillman appeals.

ISSUES: (1) Constitutionality of statute under the Section 5 of the Bill of Rights; (2) constitutionality under Section 18 of the Bill of Rights

HELD: Section 5 of the Bill of Rights preserves the right to a jury trial for causes of action that existed when our Constitution was adopted. The tort of wrongful birth was first recognized in 1990, and at that time it was recognized as a new cause of action with unique elements, separate from the general tort of medical malpractice. Section 18 similarly applies only to causes of action that existed in 1859.

STATUTES: Kansas Constitution Bill of Rights Section 5, Section 18; K.S.A. 2013 Supp. 60-1906, -1906(a)


NO. 117,903—JUNE 15, 2018

FACTS: EagleMed is a company which provides air ambulance transport. In four workers compensation cases, EagleMed was called upon to fly injured workers from rural hospitals to bigger care centers in Wichita or Garden City. In each case, Travelers provided workers compensation insurance coverage for the employer. After receiving invoices from EagleMed, Travelers objected and offered to make a lower payment based on the Medicare fee schedule that is used for air transport services. After the offer was rejected, EagleMed initiated a fee dispute proceeding with the director of Workers Compensation. It was undisputed that the federal Airline Deregulation Act of 1978 pre-empts any state law as it relates to setting air transport pricing. But the parties disagree about the scope of that pre-emption. The hearing officer ultimately concluded that the Division of Workers Compensation has no authority to set rates for payment for air ambulance services. The board ultimately ordered Travelers to pay the full amount billed by EagleMed. Travelers appealed.

ISSUE: (1) Federal preemption

HELD: The Supremacy Clause invalidates state laws which interfere with or are contrary to federal law. Pre-emption is either express or implied. The ADA expressly preempts states from making any law which affects air pricing. Because EagleMed is an air carrier, the ADA pre-emption provision broadly applies to the fee dispute it has with Travelers. The workers compensation fee schedule does not provide any guidance on what usual and customary fees are for air ambulance services, and setting those fees would be preempted by the ADA. Any question about the reasonableness of air ambulance fees must be addressed to federal authorities. The fee dispute must be dismissed by the Division of Workers Compensation.

STATUTES: 49 U.S.C. § 40102(a)(2), § 41712(a), § 41713(b) (2012); K.S.A. 2017 Supp. 44-508, -510j, -510j(h), -534


NO. 117,987—JUNE 15, 2018

FACTS: Pierson was injured in September 2012 and immediately began treatment for his injuries. Pierson's workers compensation claim was denied. The ALJ found that Pierson's injury was compensable under workers compensation and that he had a 15 percent permanent partial impairment rating. The city appealed. The board agreed that Pierson's injuries were compensable and affirmed the impairment rating, but it found that any medical treatment Pierson received prior to October 8, 2012, was unauthorized. The city appealed and the board's findings were affirmed. While that first appeal was pending, Pierson filed an application for modification of medical benefits seeking post-award medical benefits. After he did not receive payment, Pierson filed a demand for payment plus requested penalties. The board ordered the city to pay post-award medical expenses and remanded the case back to the ALJ for further factfinding. The city appealed the award of pre-award medical expenses. Pierson cross-appealed the board's rulings on attorney fees and penalties.

ISSUES: (1) Jurisdiction over pre-award medical expenses; (2) law of the case; (3) date of post-award compensation; (4) penalties and attorney fees

HELD: The board's remand on the issue of Pierson's pre-award medical expenses was a non-final agency action. The court does not have jurisdiction to review non-final agency action, and the city's appeal is dismissed as premature. The current appeal, as it relates to Pierson's post-award medical expenses, is new and is not barred by the law of the case doctrine. Pierson's application for post-award medical treatment was insufficient and lacked enough detail to serve as a request for post-award treatment. The date set by the board was erroneous. Pierson's initial demand for payment lacked particularity and did not provide supporting documents. Because of these deficiencies, the board properly denied Pierson's request for penalties. The board erred by arbitrarily setting an hourly attorney fee amount. This case must be remanded for proper consideration of attorney fees. Pierson is not entitled to appellate attorney fees.

STATUTES: K.S.A. 2017 Supp. 44-510j(h), -510k(a)(1), -510k(b), -536(b), -536(g), -556(a), 77-621(c)(7); K.S.A. 44-512a, 77-607(a), -607(b)(1), -607(b)(2)




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June 8, 2018 Digests

Posted By Patti Van Slyke, Monday, June 11, 2018
Updated: Monday, June 11, 2018

Kansas Supreme Court

Attorney Discipline

NO. 118,742—JUNE 8, 2018

FACTS: A client accused Todd of failing to promptly request a recalculation of jail time credit. Although the issue was ultimately resolved with a determination that the client was not entitled to relief, Todd stipulated to the misconduct and entered a diversion agreement with the Disciplinary Administrator. The diversion agreement required Todd to complete 16 hours of CLE. Todd completed only 15 hours and the agreement was terminated. After the termination of diversion, the Disciplinary Administrator filed a formal complaint. Todd, believing he had been diagnosed with a terminal illness, did not respond. After learning of his circumstances, the Disciplinary Administrator recommended that Todd communicate with KALAP to see if another term of diversion was appropriate. Todd's health eventually improved and a hearing was set on the formal complaint.

HEARING PANEL: The panel noted that much of Todd's delay in dealing with the disciplinary process was caused by his health issues. On that basis, the hearing panel disagreed with the Disciplinary Administrator's request for suspension and recommended discipline of published censure.

HELD: The hearing panel erred when it found that Todd violated KRPC 8.1(b). This case has significant mitigation, and Todd was entitled to a great deal of deference due to his health circumstances. And some of the poor communication was caused by procedural irregularities within the Disciplinary Administrator's office. For that reason, this case is remanded to the Disciplinary Administrator for imposition of an informal admonition with costs paid by the Disciplinary Administrator.



NO. 113,117—JUNE 8 2018

FACTS: Atkins worked as a roofer for Webcon. As a senior crew member, he was often assigned to out-of-state jobs. For these jobs, the crew would depart the company office in company-owned vehicles on Monday and return on Friday. Employees were on the clock for approximately 12 hours. After that time, they were free to do what they wished, with the caveat that company vehicles could not be driven to a bar. One evening, Atkins walked to a bar that was across the street from his hotel. On his way back to the hotel, Atkins was struck by a car being driven by an intoxicated driver. Atkins suffered catastrophic and permanent injuries. Atkins received preliminary benefits, and an ALJ found after a regular hearing that Atkins' injuries arose out of and in the course of his employment because travel was part of his job. The board reversed, disagreeing with the ALJ that travel was intrinsic to Atkins' job. The Court of Appeals affirmed and Atkins' petition for review was granted.

ISSUE: (1) Compensability of Atkins' injuries

HELD: There is no bright-line test to determine whether an injury occurred in the course of employment. The inquiry should be whether the injury is connected to job performance. If travel is an intrinsic part of the job duties, workers compensation eligibility extends to the period when an employee is coming and going from the job. But in this case, Atkins was neither going to nor coming from work. The activity he was engaging in at the time of his injuries had no connection to Atkins' work. For that reason, the board correctly found that Atkins was not entitled to benefits.

STATUTES: K.S.A. 2017 Supp. 44-508(f)(3)(B), 77-621(c)(7), -621(d); K.S.A. 2008 Supp. 44-501(a), -508(f), -556(a); K.S.A. 77-601



criminal law—criminal procedure—evidence—juries—jury instructions 
state v. barlett
wyandotte district court—affirmed; court of appeals—affirmed
No. 112,573—june 8, 2018

FACTS: Barlett involved in a three car chase that resulted in a shooting death. Trial court denied Barlett’s requests for a jury instruction on self-defense, and for an instruction that mere association with the principals or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider and abettor. Trial court also denied Barlett’s motion for a mistrial when jury, which had been provided a full transcript of Barlett’s recorded interrogation, was unable to view half the recording due to equipment failure. Jury convicted Barlett of criminal discharge of a firearm into a vehicle under a theory of aiding and abetting. Barlett entered guilty plea to voluntary manslaughter after jury split on the felony-murder charge. In unpublished opinion, Court of Appeals affirmed the firearm conviction, finding in part the self-defense instruction was legally inappropriate under State v. Bell, 276 Kan. 785 (2003), and State v. Kirkpartrick, 286 Kan. 329 (2009), because Barlett was charged with a violent felony which prevented him from asserting a theory of self-defense. Barlett’s petition for review granted in part on claims that the district court: (1) erred by not instructing the jury on self-defense; (2) erred by not instructing jury that the defendant’s mere presence with the principals or at the scene of the crime was insufficient to establish guilt as an aider or abettor; (3) failed to provide jury with a statutory definition of intentional conduct; and (4) violated Kansas statute by not replaying the recording in its entirety.

ISSUES: (1) Jury instruction—self-defense, (2) jury instruction—aiding and abetting, (3) jury instruction—intentionality, (4) malfunctioning electronic equipment

HELD: Four-step progressive instructional analysis in State v. Plummer, 295 Kan. 156 (2012), is applied. General rule stated in Bell and Kirkpatrick—that a defendant charged with committing a forcible felony is not permitted to assert a theory of self-defense—is overly broad and is inconsistent with intent of legislature and other Kansas Supreme Court opinions. Better rule is adopted: a defendant may not assert self-defense if that defendant is already otherwise committing a forcible felony when he or she commits a separate act of violence. Under this new rule, a self-defense instruction was legally appropriate in this case, but it was not factually appropriate.

            As in State v. Carter,  305 Kan. 139 (2016), the mere presence or association instruction would not have been factually appropriate in this case.

            Panel’s analysis and finding that an instruction defining intentionality was not warranted in this case, and that any error was harmless, is affirmed.

            No violation of K.S.A. 2017 Supp. 22-3420(c) is found, and no abuse of district court’s discretion when it decided the equipment failure did not produce a fundamental procedural failure. The means or form of responding to a jury’s request to review evidence is discretionary, not mandatory.

STATUTES: K.S.A. 2017 Supp. 21-5111(n), -5202(h), -5223, -5226(a), 22-3420(c); K.S.A. 21-3214, -3214(a), 22-3423(1)(c)


criminal law—criminal procedure—evidence—statutes
state v. george
leavenworth district court—reversed and remanded
court of appeals—reversed
No. 112,224—june 8, 2018

FACTS: Following mistrial, George was convicted in second trial of kidnapping, rape, aggravated robbery, and aggravated intimidation of a witness or victim. George relied on a misidentification defense. Second-trial evidence centered on victim’s testimony, surveillance video and photo lineups; and a stipulation that was referenced but not included in the record that indicated DNA test results from rape kit or victim’s clothing showed consistency with victim’s boyfriend but no consistency with George’s DNA. George filed pro se petition for post-conviction DNA testing, asking for testing of collected but previously untested hairs. District court denied the petition, relying on State v. Lackey, 42 Kan.App.2d 89 (2009)(Lackey I), to find additional testing would not point to George’s innocence. George appealed. Court of Appeals affirmed in unpublished opinion, finding district court erred in relying on Lackey I which was overturned by State v. Lackey, 295 Kan. 816 (2012)(Lackey II). Applying Lackey II, panel found that while the hairs could produce exculpatory evidence, they would nevertheless be cumulative to other record evidence. Review granted.

ISSUE: Postconviction motion for DNA testing

HELD: On record in this case, district court erred in denying George’s petition for DNA testing of hairs found at the crime scene. If testing of hairs found where rape occurred only revealed that George’s DNA was not present, the results would be exculpatory under Kansas law. Unlike other jurisdictions, the evidentiary value of this potentially exculpatory evidence does not matter at this stage. Because Kansas law does not allow for weighing of evidence until after DNA test results are obtained, exculpatory by the smallest margin is sufficient. Once DNA test results are obtained, district court makes probabilistic determination about what reasonable, properly instructed jurors would do with the new evidence in light of totality of the circumstances. Under K.S.A. 2015 Supp. 21-2512(c), future testing of the hairs “may produce” results indicating presence of other individuals’ DNA, which would be first of its kind from the crime scene and thus necessarily noncumulative. Reversed and remanded to district court to examine actual stipulation from retrial. If that stipulation essentially provided that no person’s DNA besides the victim’s boyfriend’s was present at the crime scene, then DNA testing of the hairs is unnecessary because the result would be cumulative. But if the stipulation does not so provide, then legal principles identified by the Kansas Supreme Court are to be applied to make the necessary determinations under K.S.A. 2015 Supp. 21-2512.

CONCURRENCE (Biles, J.): Writes separately to identify small but significant error in majority’s conclusion that test results showing that George’s DNA was not present would be exculpatory because it might show George was not at the scene. Concurs only because the DNA testing in this case has an ever-so-slight tendency instead to create the possibility of doubt as to the identity of the perpetrator.

STATUTES: K.S.A. 2017 Supp. 21-2512, -2512(c); K.S.A. 2015 Supp. 21-2512, -2512(c); K.S.A. 2013 Supp. 21-2512; K.S.A. 20-3018(b), 21-2512


criminal law—restitution—sentencing
state v. futrell
riley district court—affirmed in part, vacated in part, and remanded
court of appeals—affirmed in part, reversed in part
No. 115,160—june 8, 2018

FACTS: Futrell charged with burglary and theft for break-in of vehicle in January, and burglary and theft for break-in of same victim’s house in February. He entered no contest plea to the residential burglary in exchange for dismissal of all remaining charges. Sentence imposed including restitution as requested by State to cover a broken screen door, money missing from the victim’s home and vehicle, a broken vehicle window, and the destruction of an unrelated phone. Futrell appealed, arguing district court could only order restitution for the broken screen door—the damage caused by his conviction crime of burglary. Court of Appeals affirmed restitution for damage to screen door and money missing from home and vehicle in Feb. as having a sufficient causal connection to crime of conviction; affirmed restitution for damage to cell phone because Futrell agreed to that in plea agreement; and vacated order to pay for damage to January break-in as unrelated to the February burglary. 53 Kan.App.2d 272 (2016).  Futrell’s petition for review granted.

ISSUE: Restitution

HELD: Futrell does not appeal order that he pay for damage to screen door and damage to cell phone. Pursuant to State v. Arnett, 307 Kan. 648 (2018), district court can order restitution for any damages proximately caused by the crime of conviction. Order to pay for damages for money taken from home and vehicle in February is vacated, and case is remanded to district court for a new restitution hearing under the proper legal standard. Independent application of Arnett standard is precluded by factual deficiency in the record. 

STATUTE: K.S.A. 2017 Supp. 21-6607(c)(2)


constitutional law—criminal law—sentencing
state v. riffe
reno district court—reversed and remanded; court of appeals—reversed
No. 113,746—june 8, 2018

FACTS: Jury convicted Riffe of aggravated sexual battery, and acquitted him on charges of aggravated kidnapping and attempted rape. Sentence imposed included 24 months of postrelease supervision. State filed motion to correct an illegal sentence, asking for lifetime postrelease supervision. Riffe challenged that request as unconstitutional. District court agreed, finding one of the three factors in State v. Freeman, 223 Kan. 362 (1978), weighed in Riffe’s favor and the second two factors did not apply. District court imposed a 10 year postrelease supervision term as the “outer limits” of avoiding cruel and unusual punishment as applied in this case. State appealed.  In unpublished opinion, Court of Appeals found all three Freeman factors weighed in State’s favor under facts in the case, concluded that lifetime postrelease supervision was constitutional as applied, and remanded for resentencing with lifetime postrelease supervision. Riffe’s petition for review granted.

ISSUE: Constitutionality of lifetime postrelease supervision

HELD: District court made insufficient factual findings regarding Freeman factor one, and made legal error when it disregarded factors two and three. Court of Appeals panel erred by not remanding the case for consideration under the proper standard. Case remanded to district court for purpose of using proper legal standard to consider whether lifetime postrelease supervision is unconstitutional under section 9 of Kansas Constitution Bill of Rights as applied to Riffe. District court is to consider all three Freeman factors, and is cautioned to ensure its findings are based on the evidence presented by the parties, not the arguments submitted by attorneys.

CONCURRENCE and DISSENT (Johnson, J): Concurs with majority’s decision to remand for consideration of second and third Freeman factors. Disagrees with majority’s determination that district court’s findings as to the first Freeman factor were insufficient.

CONCURRENCE (Stegall, J.): Extensive review of Kansas Supreme Court’s history in interpreting section 9 prohibition against “cruel and unusual punishment,” the official recognition in Freeman of a proportionality component, and the Kansas response to the continuing proportionality debate in cases decided by supreme courts in Kansas and the United States. While argument that the original meaning of text of section 9 does not include a proportionality principle appears strong, he joins the majority in this case because Freeman factors remain the law in Kansas, and no wholesale revision of section 9 jurisprudence would be prudent without first hearing well developed and briefed arguments from parties and any interested amici.

STATUTE: K.S.A. 2010 Supp. 22-3717(d)(1)(G)


Kansas Court of Appeals


NO. 118,410—JUNE 8, 2018

FACTS: Stephen Davis filed a petition to summon a grand jury. He claimed that Secretary of State Kris Kobach committed various election-related crimes. The county clerk verified that Davis collected enough signatures. But the district court dismissed the petition without prejudice, finding that it did not contain allegations of specific facts that would warrant a finding that the inquiry might lead to information which, if true, would warrant a true bill of indictment. David appealed.

ISSUES: (1) Directory versus mandatory language; (2) specificity requirement; (3) sufficiency of petition

HELD: K.S.A. 2017 Supp. 22-3001(c)(1) provides that a petition for grand jury shall state the subject matter of the prospective grand jury. Despite the use of the word "shall", that language is mandatory and not directory. The plain statutory language does not require that the petitioner make allegations of specific facts; rather, the threshold for making "sufficient general allegations" is low. Davis' petition alleges facts which track the election crimes as established by statute, in much the same way as a charging document. A grand jury petition does not require pleadings sufficient enough to allow for a defense, since there is no defense lodged against a grand jury inquiry. 

STATUTES: K.S.A. 2017 Supp. 22-3001, -3001(a), -3001(c)(1), -3001(c)(2), -3001(c)(3), -3001(c)(4), -3009, 25-2419, -2420, -2421a, -; K.S.A. 2011 Supp. 22-3001(b); K.S.A. 12-3013(a), 22-3001(1), -3201(b), 25-2419, -2420, -2421a, -2504

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June 1, 2018 Digests

Posted By Administration, Tuesday, June 5, 2018
Updated: Tuesday, June 5, 2018

Kansas Supreme Court


criminal law—criminal procedure—prosecutors—statutes
state v. king
wyandotte district court—affirmed
No. 116,146—june 1, 2018

FACTS: King and a codefendant were jointly tried on charges arising from a string of violent robberies. Jury convicted King of attempted capital murder, aggravated robbery, aggravated battery, conspiracy to commit aggravated robbery, and criminal possession of a firearm. Two weeks later King filed motion for a new and severed trial, citing statements by codefendant’s attorney during closing argument. District court denied the motion. On appeal King claimed:  (1) insufficient evidence that he was one of the robbers, and no evidence of a formal agreement to support the conspiracy conviction; (2) prosecutor improperly interjected his personal beliefs during closing argument; (3) district court erred by denying King’s motion for a new trial; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial Error, (3) motion for New and severed trial, (4) cumulative error

HELD: Sufficient evidence supported the convictions. Under facts in case, a rational fact-finder could have found beyond a reasonable doubt that King was one of the robbers, and there was strong circumstantial evidence of an agreement to commit a string of robberies.

Prosecutor’s statements in closing argument are examined in detail. Prosecutor’s use of “I submit” was not error. Two of prosecutor’s “I think” statements” impermissibly conveyed the prosecutor’s opinion but were not error in this cases which occurred before Kansas Supreme Court cases put prosecutor’s on notice that such statements were improper. Three uses of “we know” were error, even if the inferences being drawn were reasonable, but these errors were harmless beyond a reasonable doubt.

King failed to request a severance before or during trial, did not object to the codefendant’s closing argument statements, and first asked for severance in his motion for a new trial. By failing to comply with K.S.A. 22-3204, King waived his ability to seek severance.

Aggregate effect of the three harmless prosecutorial errors found in this case were harmless beyond a reasonable doubt.  

STATUTES: K.S.A. 2017 Supp. 22-3601(b)(3); K.S.A. 2014 Supp. 21-5302(a); K.S.A. 22-3202(3), -3204 

criminal law—jury instructions­ prosecutors
state v. nesbitt
sedgwick district court—affirmed
No. 116,550—june 1, 2018

FACTS: Nesbitt convicted of felony murder, rape, and aggravated burglary. The crimes arose from a violent attack on a 100-year-old victim in her home, and the victim’s subsequent death. On appeal Nesbitt claimed:  (1) insufficient evidence supported his felony murder conviction because the victim’s death 21 days later was not within the res gestae of the underlying felony of rape, and no direct causal connection between the rape and the victim’s death; (2) insufficient evidence supported his aggravated burglary conviction because no evidence that he entered the home to commit rape; (3) prosecutor’s reference in closing argument to victim as a family “treasure” was improper attempt to inflame the passions of the jury; (4) trial judge erred by refusing to give a defense-proposed instruction on a race-switching exercise; and (5)  cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidencefelony murder, (2) sufficiency of the evidence - aggravated burglary, (3) prosecutorial error, (4) race-switching instruction, (5) cumulative error

HELD: No legal merit to Nesbitt’s res gestae argument. Sufficient evidence supported Nesbitt’s conviction on felony murder, including the foreseeability of a rape victim’s death 21 days after the attack, when injuries the victim suffered caused pain that immobilized her, giving rise to the development of fatal blood clots.

Sufficient evidence supported jury’s verdict that rape, not theft, was the attacker’s goal on entering the home. Victim’s house was tidy and orderly but for the mutilated back door through which the attacker entered and the disorganized bedroom where the rape occurred. Nothing to indicate someone entered the house to commit theftnothing was missing or moved, including valuable items in plain view.

Prosecutor’s challenged remarks were improper, with no purpose other than inflaming passions of jurors, but under facts in case no reversible error.

No Kansas case found in which the proposed race-switching instruction has been given. Federal and state court cases are reviewed, with majority rejecting the instruction. Here, the proposed instruction was not legally appropriate under Kansas law, thus district judge did not err in refusing to give it.

The single error found in this case does not support a cumulative error claim.

STATUTES: K.S.A. 2014 Supp. 21-5402(a)2), -5402(c)(1)(E); K.S.A. 2013 Supp. 21-5807(b)(1)


appeals—criminal procedure—motions—statutes
state v. parks
reno district court—affirmed
No. 116,172—june 1, 2018

FACTS: Parks convicted in 1997 of the 1978 premeditated first-degree murder of his wife. State v. Parks, 265 Kan. 644 (1998). Over 16 years later, Parks filed pro se “Motion to Set Aside a Void Judgment,” claiming his no contest plea was not knowing and intelligent. Appointed counsel argued the motion should be treated as one to withdraw Parks’ plea. District court agreed and denied the motion, finding it untimely with no showing of excusable neglect for the delay. Parks appealed, arguing for first time that district court should have construed the pro se motion as one under K.S.A. 60-1507 that would have been timely under the manifest injustice exception.

ISSUE: Motion to withdraw plea

HELD: Under facts in the case, invited error doctrine applies where Parks repeatedly invited district court to construe a pro se motion as a motion to withdraw plea. Argument that the district court should have construed and treated Parks’ motion as a K.S.A. 60-1507 motion is rejected. District court correctly held the motion was untimely filed. Parks failed to meet his burden of demonstrating excusable neglect to allow the out-of-time motion to withdraw his plea.

STATUTES: K.S.A. 2017 Supp. 22-3210, -3210(e)(1), -3210(e)(2), -3601; K.S.A. 22-3210, 60-1507; K.S.A. 21-3401, -4501 (Weeks, 1974)

Kansas Court of Appeals


NO. 116,842—JUNE 1, 2018

FACTS: Pardo is a long-term employee of UPS, and he continues to work there to this day. Pardo injured his shoulder in 2013 during the course of his employment. The injury was surgically repaired and the parties agreed to a 15% permanent partial impairment rating. Pardo injured his left shoulder again in 2015 while at work. Surgery revealed a new injury. It was treated and Pardo returned to work, but he continued to have pain and a limited range of motion. All of the physicians who examined Pardo agreed that he had residual issues with the shoulder that warranted both future medical treatment and an impairment rating. An amendment to K.S.A. 2014 Supp. 44-510d(b)(23) required the physicians to consult the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition, which allows for only one lifetime impairment rating with no exception made for a physician's skill, experience, expertise, training, or judgment. Based on that decree, Pardo was assigned a zero percent impairment rating. The ALJ denied Pardo's request for compensation. That finding was affirmed by the Board, and Pardo appealed.

ISSUE: (1) Constitutionality of K.S.A. 2014 Supp. 44-210d(b)(23)

HELD: UPS provided no evidence to prove that the change from the 4th edition of the AMA Guides to the 6th edition was reasonably necessary to promote the general welfare of the people of Kansas. But the State did prove that the amendment was made because the 6th edition is more medically sound than the 4th edition. Under the Workers Compensation Act, Pardo surrendered his right to seek a common-law award from his employer. When the 6th edition of the Guides is used, Pardo gets nothing in return for that surrender. This leaves Pardo with no remedy and renders K.S.A. 2014 Supp. 44-510d(b)(23) unconstitutional as applied to him. The remedy is to sever the portion of the statute that is unconstitutional as applied to Pardo. The case is remanded for further proceedings.

STATUTES: Kansas Constitution Bill of Rights, § 1, §18, Article 2, § 1, Article 3, § 1; K.S.A. 2014 Supp. 44-501(e), -501b(d), -510d(b)(23); K.S.A. 44-574(b)

NO. 118,189—JUNE 1, 2018

FACTS: Father's paternity was established in 2009. Over the years, mother and father had many disagreements about custody, parenting time, and child support. In 2017, the paternal grandmother filed a motion requesting grandparent visitation of one weekend per month. Mother objected and asked for attorney fees, claiming that no provision in the Kansas Parentage Act allows for grandparent visitation. After a hearing, the district court concluded that M.V. had a substantial relationship with grandmother and that visitation was in her best interests. The district court granted visitation using grandmother's proposed schedule and denied mother's request for attorney fees. Mother asked the district court to reconsider and proposed a once-per-month visit of five hours, versus an entire weekend. Mother based this request on the fact that grandmother had an unknown man living with her and because grandmother took M.V. to visit father in jail, even though father was facing child sex abuse charges and the visits violated a court order. The district court denied reconsideration and mother appealed.

ISSUES: (1) Due process violation; (2) attorney fees

HELD: Grandmother does have the right to seek visitation in the context of a paternity action. And grandmother satisfied her burden to prove that there was a substantial relationship and that visitation was in M.V.'s best interests. But in any grandparent visitation action, the district court must presume that a fit parent is acting in the child's best interests and must give special weight to the parent's proposed visitation schedule. There is no indication in this case that the district court ever properly evaluated mother's proposed schedule. This case must be remanded in order to allow the district court to make all necessary findings about mother's proposed schedule, which cannot be rejected unless it is found to be unreasonable. On remand, the district court must also follow the statute when evaluating mother's request for attorney fees.

STATUTE: K.S.A. 2017 Supp. 23-3301, -3301(b), -3304

Tags:  attorney fees  grandparent visitation  Reno 

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May 25, 2018 Digest

Posted By Administration, Tuesday, May 29, 2018
Updated: Tuesday, May 29, 2018

Kansas Supreme Court


criminal procedure—statutes
state v. gross
saline district court—affirmed; court of appeals—affirmed
no.113,275—may 25, 2018

FACTS: Gross was convicted in a bench trial on charges of criminal threat, criminal damage to property, and battery against a county corrections officer. Pretrial mental health evaluations were conducted on the judge’s own motion and on the State’s request, each finding Gross competent to stand trial. During the trial, defense counsel and prosecutor conferenced in chambers about Gross’ outbursts, off-topic comments, and general conduct. Trial judge noted Gross’ demeanor but remained convinced that no further evaluation was needed. Gross appealed in part on claim that he should have been present during the in-chambers discussion of his mental state. Court of Appeals affirmed in unpublished opinion, citing controlling precedent in State v. Perkins, 248 Kan. 760 (1991), that K.S.A. 2017 Supp. 22-3302 does not mandate that the defendant be present when the discussion concerns whether to hold a competency hearing. Review granted on Gross’s claim that Perkins was not applicable to his case, and that Perkins should be overturned as inconsistent with K.S.A. 22-3302(7).

ISSUE: Right to be present

HELD: Court considers issue raised for first time on appeal. Gross asserted no constitutional claim, so review limited to statutory analysis. No meaningful way to distinguish the hearing in Perkins from the hearing at issue in this case, thus Perkins applies. The in-chamber conference without Gross being present did not violate K.S.A. 2017 Supp. 22-3302(7). K.S.A. 2017 Supp. 22-3302(7) is ambiguous given the multiple uses of the term “proceedings” in other portions of the statute, and the statute’s language does not clearly support Gross’ reading of its meaning. The holding in Perkins is reaffirmed, based on doctrine of stare decisis and 27 years of legislative acquiescence thereafter to the court’s interpretation of the statute.

STATUTES: K.S.A. 2017 Supp. 22-3302, -3302(a), -3302(3), -3302(4), -3302(6), -3302(7); K.S.A. 22-3301, -3302

Tags:  Perkins  Saline District  State v. Perkins 

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May 18, 2018 Digests

Posted By Administration, Tuesday, May 22, 2018
Updated: Monday, May 21, 2018

 Kansas Supreme Court


NO. 113,103—MAY 18, 2018

FACTS: The Williamses married in 1985. Due to Alfonza's military service, they moved frequently. Joann settled in Kansas and filed for divorce in 1993. With no objection from Alfonza, the district court awarded Joann 25 percent of Alfonza's military retirement benefits as part of the property settlement agreement. Neither party appealed. Many years later, Joann sought to have Alfonza pay her portion of his retirement. Alfonza responded by moving to set aside the portion of the divorce decree that awarded Joann a portion of his retirement benefits, claiming that the district court lacked jurisdiction to make such an award. Alfonza's motion to set aside was denied and Joann was given attorney fees. This decision was affirmed on appeal, and Alfonza's petition for review was granted.

ISSUES: (1) Federal limits on state jurisdiction; (2) consent to jurisdiction; (3) attorney fee award

HELD: The plain language of the Uniformed Services Former Spouses' Protection Act limits a state court's personal jurisdiction over a service member, but not its subject matter jurisdiction. Because there is no limit to the state court's subject matter jurisdiction, a service member may consent to personal jurisdiction. Alfonza gave that consent when he participated in discussions regarding his military retirement benefits during the divorce hearing and did not object. Joann's attempt to have Alfonza pay her share of his military retirement benefits was not a garnishment action but was instead a proceeding as part of the original divorce action. The Kansas Family Law Code authorizes the award of attorney fees, if appropriate. Because of that authority, the award of attorney fees is affirmed.

STATUTES: 10 U.S.C. § 1408(a)(1), § 1408(c)(4);  K.S.A. 2017 Supp. 23-2711, -2715, -2801, -2802, 60-212(b)(2), -212(h), -304, -308, -308(b)(1)(H), -731; K.S.A. 20-301



constitutional law—fourth amendment—search and seizure—statutes
state v. toliver
riley district court—affirmed; court of appeals—reversed
No. 111,897—may 18, 2018

FACTS: Parole officer and others including law enforcement detectives arrested Toliver for possession of marijuana found during a “home visit” at Toliver’s residence. Toliver filed unsuccessful motion to suppress the marijuana. Court of Appeals reversed that decision. State v. Toliver, 52 Kan.App.2d 344 (2016). Panel majority invalidated the parole agreement, finding the condition in Toliver’s signed agreement allowing such searches was not authorized by Kansas law as required by State v. Bennett, 288 Kan. 86 (2009), and holding the search violated the Fourth Amendment. State’s petition for review granted.

ISSUE: Fourth Amendment—suspicionless search of parolee

HELD: Under facts in this case, the warrantless and suspicionless search of Toliver’s home did not violate his federal or state constitutional rights. Holding in Bennett is clarified to comport with United States Supreme Court caselaw. An authorizing state statute or administrative regulation presents one of the ways a suspicionless search can withstand Fourth Amendment scrutiny. Under United States v. Knights, 534 U.S. 112 (2001), a parole or probation condition in a signed agreement can also establish a diminished privacy right. Applying a totality of the circumstances analysis, Toliver’s signed parole agreement alone supports the parole officer’s suspicionless search. Court of Appeals is reversed. District court’s decision and Toliver’s conviction are affirmed.

STATUTES: K.S.A. 2014 Supp. 22-3717, -3717(i), -3717(k), -3717(k)(2); K.S.A. 2011 Supp. 21-5706(b)(3)


Kansas Court of Appeals


criminal procedure—jury instructions—statutes
state v. green
saline district court—affirmed
No. 116,635—may 18, 2018

FACTS: Jury convicted Green of crimes including aggravated battery. On appeal, Green claimed the district court erred by (1) providing an erroneous jury instruction on knowing aggravated battery, (2) not instructing on the lesser included offense of reckless aggravated battery, and (3) giving a burden of proof instruction that improperly discouraged the jury from exercising its power of nullification. He also challenged the district court’s use of Green’s prior convictions in calculating Green’s criminal history for sentencing.

ISSUES: (1) Jury instruction—knowing aggravated battery, (2) jury instruction—lesser included offense, (3) jury instruction—burden of proof and power of nullification, (4) sentencing

HELD: Pattern instruction that corresponds to K.S.A. 2017 Supp. 21-5413(b)(1)(C) is examined, finding modification of PIK Crim. 4th 54.310 is warranted to match the statutory definition of knowing aggravated battery. In this case, no clear error in the district court’s legally appropriate instruction on knowing aggravated battery.

An instruction on the lesser included crime of reckless aggravated battery would have been legally appropriate, but not factually appropriate in this case.

Any error in the burden of proof jury instruction was invited by Green. Even if no invited error is assumed, the district court’s burden of proof instruction was legally appropriate.

Controlling Kansas Supreme Court caselaw defeats Green’s claim that the district court improperly used his criminal history.

STATUTES: K.S.A. 2017 Supp. 21-5109, -5109(b)(1), -5109(b)(2), -5202, -5202(a), -5202(b), -5202(c), -5202(i), -5202(j), -5413(a), -5413(a)(2), -5413(b), -5413(b)(1)(A), -5413(b)(1)(B), -5413(b)(1)(C), -5413(b)(2)(A), -5413(b)(2)(B), -5413(g)(2)(B), -5413(g)(2)(D), 22-3414(3); K.S.A. 2015 Supp. 21-5413(a)(1), -5413(b)(1)(C), -5413(c)(3), -5924(a)(4); K.S.A. 21-3414(a)(2)(B)


appeals—constitutional law—fourth amendment—search and seizure
state v. Messner
butler district court—reversed and remanded
no.117,559—May 18, 2018

FACTS: Police stopped Messner in response to store employees’ call to police to report concern about Messner’s behavior and length of stay in the store. When Messner left the store, police followed and stopped him for sole purpose of checking his welfare. Police seized his driver’s license, arrested him on an outstanding warrant, and found drug evidence in search of the car. Messner filed motion to suppress, arguing the arrest and search were unlawful. District court denied the motion and found Messner guilty in bench trial on stipulated facts. Messner appealed.

ISSUES: (1) Safety stops, (2) investigatory stop, (3) attenuation doctrine

HELD: A three-part test is applied to scrutinize safety stops. A public safety or community caretaking stop must be based upon specific and articulable facts, but must be divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Here, evidence supports district court’s finding that this was a public safety stop to check on Messner’s welfare, but the officer exceeded the scope of a public safety stop by seizing Messner’s driver’s license and running it for wants and warrants. Similarity of this case to State v. Gonzales, 36 Kan.App.2d 446 (2006), is discussed.

State’s alternative argument - that officer could stop Messner as part of an investigation based on store employee’s tip that Messner appeared confused, “meth’d out,” and “in no shape to drive”—is unpersuasive. Nickelson v. Kansas Dept. of Revenue, 33 Kan.App.2d 359 (2004), is distinguished because there was no real indication that Messner was unfit to drive. District court erred in finding the stop properly shifted from a safety stop to a justifiable investigatory stop. Reversed and remanded with directions to grant Messner’s motion to suppress.

State’s new argument - that the existence of a preexisting and untainted arrest warrant would allow evidence to be admitted - is deemed abandoned because State failed to explain why the issue was properly before the court for first time on appeal.  



constitutional law—fourth amendment—search and seizure
state v. knight
barton district court—reversed and remanded
no.117,992—may 18, 2018

FACTS: Car driven by Knight was stopped by police for an expired license plate. Officer viewed drug paraphernalia sticking out of passenger’s waistband, searched the car, and found drug evidence. Knight filed motion to suppress the narcotics and paraphernalia seized from the car. District court granted the motion, finding in part the law was in flux as to whether plain view of drug paraphernalia on the passenger established probable cause to search the driver’s vehicle. State filed interlocutory appeal.

ISSUE: Probable cause for search of car

HELD: State’s reliance on officer’s preliminary hearing testimony that Knight admitted to drugs being in the car is misplaced because a different judge heard Knight’s motion to suppress, and State did not request transcript of the preliminary hearing until after filing notice of appeal.  On the evidence presented by the State at the suppression hearing, the probable cause plus exigent circumstances exception to the Fourth Amendment warrant requirement is satisfied. Applying U.S. Supreme Court legal principles to facts in this case, the officer had probable cause to search enclosed areas within which the contraband was found, and which were in the reach of a person sitting in the passenger seat. District court’s order of suppression is reversed and case remanded for further proceedings.



criminal law—sentencing—statutes
state v. walter
johnson district court—sentence vacated and case remanded
No. 117,324—may 18, 2018

FACTS: Walter pled guilty to aggravated battery. In sentencing, district court over-ruled Walter’s objections to the classification of Walter’s two previous Missouri burglary convictions as person felonies. Walter appealed, contending his Missouri convictions are not comparable to any form of burglary in Kansas.

ISSUE: Classification of out-of-state conviction

HELD: In State v. Wetrich, 307 Kan. 552 (2018), the Kansas Supreme Court created a new test to determine comparability of crimes, requiring the elements of the out-of-state crime to be identical to, or narrower than, the elements of the Kansas crime to which it is being compared. Charts comparing the Missouri convictions that Walter violated to the Kansas burglary statute in effect when Walter committed the current crime are set forth and discussed, finding the Kansas person crime of burglary of a dwelling is not comparable to Missouri’s first-degree or second-degree burglary offense. Sentence is vacated and case is remanded with directions to classify the two Missouri convictions as nonperson crimes.

STATUTES: K.S.A. 2017 Supp. 21-6811(e)(3); K.S.A. 2015 Supp. 21-5111, -5807, -5807(a)(1), -5807(b), -5807(c)(1)(A), -5807(c)(3)

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May 11, 2018 Digests

Posted By Administration, Tuesday, May 15, 2018
Updated: Monday, May 14, 2018

Kansas Supreme Court –


NO. 115,309—MAY 11, 2018

FACTS: T.M.M.H. was a few months old when his father died. His Grandmother and Mother reached an arrangement where T.M.M.H. lived with Grandmother, and at some point Grandmother filed for visitation. This action created many agreements, which supplemented more informal arrangements between Grandmother and Mother. Eventually, the district court ordered that Grandmother and Mother have "joint legal custody" of T.M.M.H. with reintegration of the child to Mother's life. Over time, Mother remarried and her new husband filed a petition for step-parent adoption which was completely separate from the visitation action. Grandmother received notice of the petition, but the district court ruled that Grandmother was not an interested party to the adoption proceeding. The Court of Appeals affirmed this decision, and the Supreme Court granted Grandmother's petition for review.

ISSUE: Standing via interested party status

HELD: Adoption did not exist at common law, so standing must come from statutes which create jurisdiction. The adoption statutes do not include grandparents as interested parties and the court can only interpret the plain meaning of the statutes. The agreements between Mother and Grandmother were imprecise and not all of them were in the record on appeal, which means that the court cannot determine their full scope and meaning. This prevents Grandmother from meeting her burden to show that Mother waived her parental preference.

CONCURRENCE AND DISSENT: (Stegall, J.) It is error to require Grandmother to meet heightened pleading requirements in order to prove that she has become a parent via Mother's waiver. Frazier was wrongly decided and improperly interprets the Kansas Parentage Act. But under the law as it currently exists, Grandmother does not have standing.

DISSENT: (Rosen, J.) It was error to ignore the record from the visitation action. Grandmother presented prima facie evidence of her standing as a parent. Because she met this burden, the case should be remanded to determine if the burden can be sustained and ultimately provide standing.

DISSENT: (Johnson, J., joined by Beier, J.) There is adequate evidence in the record to show that Grandmother has a legitimate claim to being an interested person.  

STATUTE: K.S.A. 2016 Supp. 59-2401a, -2401a(a), -2401a(b), -2401a(e)


Kansas Court of Appeals


attorney and client—constitutional law—criminal procedure
State v. Harris
Atchison district court—affirmed
No. 117,362—May 11, 2018

FACTS: Harris was arrested on failure to appear warrant. At jail intake, officers discovered THC positive cigarillo sticks in pocket of jacket Harris had been wearing. At end of bench trial, district court took matter under advisement and issued a written decision the next day finding Harris guilty of possession of marijuana. On appeal Harris claimed for first time that his waiver of right to a jury trial was not knowing and voluntary. He next claimed insufficient evidence supported his conviction. Third, he claimed the district court violated Harris’ right to be present at all critical stages of the trial by issuing its determination via a written memorandum decision instead of pronouncing it from the bench. And fourth, he claimed the district court erred in denying motion for a new trial in which Harris alleged his trial counsel was ineffective.

ISSUES: (1) Waiver of right to jury trial, (2) sufficiency of the evidence, (3) presence at trial, (4) motion for new trial - ineffective assistance of counsel

HELD: Kansas cases have found a defendant’s waiver of jury trial may constitute an exception to general rule requiring a contemporaneous objection, and have upheld jury trial waivers even when district court failed to explain all particulars surrounding the right to a jury trial. Under facts of this case, Harris was appropriately advised of his right to a jury trial, and his waiver of his right to a jury trial was knowingly and voluntarily made.

Notwithstanding the failure to monitor the jacket for a 20 minute period in the booking area, the evidence viewed in the light most favorable to the prosecution was sufficient to find the marijuana was in Harris’ possession when he entered intake wearing the jacket.

Harris’ right to be present was not violated by the district court rendering its findings in a memorandum decision. The return of a jury verdict is a critical stage because the parties can poll a jury to ensure verdict unanimity. However, while a guilty finding by a court must be rendered in open court so long as there is no unreasonable delay, the findings may be rendered at sentencing.

Defense counsel’s failure to object to district court’s issuance of a memorandum decision was not ineffective assistance because no legal basis for that objection in this case. Under facts in the case, Harris’ unMirandized statement that the jacket would not have been admitted if defense counsel had filed a motion to suppress, but the statement was inconsequential to the court’s determination. Exclusion of the statement would not have affected the outcome of the trial. District court did not abuse its discretion by denying Harris’ motion for a new trial.

STATUTES: K.S.A. 2017 Supp. 22-3405(a), -3424, -3424(a), -3424(b), -3424(c), -3501; K.S.A. 22-3403(1), -3421

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May 4, 2018 Digests

Posted By Administration, Monday, May 7, 2018
Updated: Monday, May 7, 2018

Kansas Supreme Court


NO. 112,658—MAY 1, 2018

FACTS: In March 2015, Louis M. Clothier was placed on probation for a term of three years. In April 2018, Clothier filed a motion for discharge from probation, along with affidavits showing compliance with all of the terms of his probation. The Disciplinary Administrator verified that Clothier completed all required tasks and offered no objection.

HELD: After considering the motion, affidavits, and supporting evidence, Clothier is discharged from probation.

NO. 118,310—MAY 4, 2018

FACTS: A hearing panel determined that Holmes violated Kansas Rules of Professional Conduct 1.4 (communication), 1.16(a)(1) (withdrawing from representation), 5.5(a) (unauthorized practice of law), 8.1 (false statement in connection with a disciplinary matter), 8.4(c) (engaging in conduct involving dishonesty), and 8.4(d) (engaging in conduct prejudicial to the administration of justice), as well as Supreme Court Rule 218(a) (notification of clients upon suspension). In 2015, Holmes' license was administratively suspended after he failed to pay the entire annual registration fee. Despite the suspension, Holmes continued to represent clients in multiple cases. Once this representation came to light, Holmes made false statements to the court and the Disciplinary Administrator.

HEARING PANEL: The hearing panel found the existence of several aggravating factors, including dishonest or selfish motive and a pattern of misconduct. This appeared to be part of an on-going attempt by Holmes to minimize his conduct. The disciplinary administrator recommended a 6-month suspension. Holmes asked that he be placed on probation, but he failed to follow the procedure established by Rule 211(g)(3), which eliminated probation as an option. The hearing panel recommended that Holmes be suspended for a period of 1 year.

HELD: After considering Holmes' exceptions to the hearing panel report, the court found that the decisions of the hearing panel were correct. The disciplinary administrator continued to recommend a 6-month suspension. In deference to the panel that heard the case, a majority of the court agreed with the hearing panel and imposed discipline of a one year suspension. A minority of the court would have imposed the 6-month suspension recommended by the disciplinary administrator.

Kansas Court of Appeals 


JONES V U.S.D. NO. 259
NO. 117,915—MAY 4, 2018

FACTS: Jones was injured at work in 2011 while moving boxes of copy paper through the school where he was employed. Jones received conservative treatment and was released back to work without restrictions, although he still complained of symptoms. Jones ultimately underwent surgery to repair an injury to his neck, but he was released back to work without permanent restrictions. Jones was injured again in 2014, and he underwent a second surgery. After his recovery, he was again released back to work without permanent restrictions. But his job had been eliminated due to his extended absence. After failing to find other employment, Jones filed for workers compensation benefits. The ALJ found that Jones suffered a 15 percent permanent partial impairment of the whole body, with 61 percent task loss. The ALJ did not consider whether there was any preexisting task loss from the 2011 injury when calculating task loss for the 2014 injury. U.S.D. No. 259 appealed, claiming the ALJ erred by not including Jones' preexisting permanent restrictions from the 2011 injury when calculating the 2014 injury's task loss. The Board agreed, ruling that the task loss calculation was incorrect. Jones appealed.

ISSUES: (1) Collateral estoppel; (2) interpretation of K.S.A. 2013 Supp. 44-510e(a)(2)(D)

HELD: The issue regarding collateral estoppel was not raised before the board or in Jones' petition for judicial review. The argument cannot be raised for the first time in his appellate brief. The board misinterpreted K.S.A. 2013 Supp. 44-510e(a)(2)(D). Jones had no permanent work restrictions following his 2011 injury. Although there was testimony that he should have had those restrictions, he did not. The board interpreted the statute by reading in language that does not exist. This matter is remanded for further consideration of Jones' award without consideration of any pre-existing work restrictions.

STATUTES: K.S.A. 2017 Supp. 77-621(c)(4); 2013 Supp. 44-510e(a)(2)(D)

Tags:  Attorney Discipline  workers compensation 

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April 27, 2018 Digests

Posted By Administration, Monday, April 30, 2018
Updated: Monday, April 30, 2018

Kansas Supreme Court




criminal law—criminal procedure—evidence—jury instructions—prosecutors sentencing—statutes
state v. butler
wyandotte district court—convictions affirmed—sentence vacated—remanded
115,604—April 27, 2018

FACTS: Butler was convicted of first-degree felony murder, conspiracy to commit aggravated robbery, and attempted aggravated robbery. Sentence imposed included lifetime postrelease supervision. On appeal he challenged: (1) the sufficiency of the evidence supporting a finding of guilt on each of the alternative means in K.S.A. 2012 Supp. 21-5302 for committing the overt act in furtherance of the conspiracy; (2) district court’s instruction that jury had to find Butler committed the crime of conspiracy to commit aggravated robbery “knowingly” rather than “intentionally;” (3) district court’s denial of Butler’s motion for a new trial based on ineffective assistance of counsel; (4) district court’s failure to give a limiting instruction regarding evidence of prior bad acts; and (5) prosecutor’s closing argument reference to the defense theory of the case as “ridiculous.” Butler also claimed cumulative error denied him a fair trial, and claimed the district court erred by imposing lifetime postrelease supervision rather than lifetime parole.

ISSUES: (1) Alternative means, (2) jury instruction—conspiracy to commit aggravated robbery, (3) motion for new trial, (4) jury instruction - prior bad act evidence, (5) prosecutorial error, (6) cumulative error, (7) sentencing

HELD: Plain language of K.S.A. 2012 Supp. 21-5302 does not set forth alternative means for committing an overt act.  

            Under K.S.A. 2012 Supp. 21-5202 and facts in this case, it was legally appropriate for district court to instruct jury that it had to find Butler committed the crime of conspiracy to commit aggravated robbery knowingly rather than intentionally. Butler’s misplaced reliance on State v. Campbell, 217 Kan. 756 (1975), is discussed. The caselaw description of conspiracy as a specific intent crime has little relevance to the mental state now legally required as an element of the crime.

            Specific allegations of ineffective assistance of counsel are examined, finding no abuse of district court’s discretion in denying Butler’s motion for a new trial. Substantial evidence supports district court’s findings that Butler’s girlfriend did not allege an alibi defense until after Butler was convicted, that investigation of a gun located in a pawn shop was irrelevant to Butler’s defense, and that counsel’s failure to pursue phone records and forensic evidence was reasonable under the facts in this case.

            Evidence of events that were clearly part of the res gestae do not implicate K.S.A. 2012 Supp. 60-455. District court should have limited jury’s consideration of evidence regarding Butler’s drug purchases, but no clear error.

            Under facts in this case, prosecutor’s rebuttal characterization of Butler’s theory of the case as “ridiculous” was fair comment on the evidence.

            Cumulative error claim is defeated by the finding of only a single error.

            State concedes sentencing error. Lifetime postrelease supervision is vacated, and case is remanded for imposition of lifetime parole.

STATUTES: K.S.A. 2012 Supp. 21-3501(1), -3601(b)(3), -3717(b)(2), -5302, -5302(a), -5302(b), -5302(d), -5302(e), -5402(a), -6806(c), 22-3414(3), 60-455; K.S.A. 21-3201, 60-455; K.S.A. 21-3302 (Weeks)


Kansas Court of Appeals –



NO. 117,139—APRIL 27, 2018

FACTS: After merging with Nextel Communications to form Sprint Nextel, the company booked significant financial losses. Monica Ross-Williams filed a shareholder derivative action on behalf of shareholders, claiming a breach of fiduciary duty in agreeing to the transaction. After negotiations, all parties to the shareholder derivative action agreed to a settlement. The settlement provided for reform in corporate governance and internal control policies but did not grant any monetary awards. The proposed settlement did include $4.25 million in attorney fees and expenses to be paid by Sprint. After the agreement was reached, Ross-Williams filed in Kansas district court a motion seeking approval of the proposed settlement. Notice was sent to all Sprint shareholders and one stock owner, Michael Hartleib, filed an objection not only to the settlement agreement but also to the proposed attorney fees. The district court heard extensive arguments from the parties before agreeing to substantive portions of the proposed settlement, plus attorney fees in the amount of $450,000. Hartleib appealed this ruling, while Ross-Williams cross-appealed the attorney fee award.

ISSUES: (1) Standing; (2) venue; (3) settlement agreement approval; (4) attorney fees

HELD: Kansas does not have a continuing-ownership requirement for shareholder derivative actions. So even if Ross-Williams no longer owns stock, she did at the time the suit was initiated and she has standing to pursue this action. Sprint submitted to the jurisdiction of Kansas courts and also agreed to the settlement that was enforced under Kansas law, giving Kansas venue. The district court independently analyzed the proposed settlement and considered all relevant factors. This diligence allowed for an assurance that there was no abuse of discretion, even with the heightened standard that must be applied when shareholders are not awarded any money from the settlement. There is no evidence of fraud or collusion between the parties and the substantive terms of the settlement were fairly negotiated. On cross-appeal, Ross-Williams claims that the district court erred by awarding $450,000 in attorney fees rather than the requested $4.25 million. Evidence submitted to the district court showed that the amount of work performed on this case was far outside the norm for this type of action. This is especially true after it came to light that the most unreasonable billing hours came from an attorney who had been disbarred. Counsel was entitled to be fairly compensated, and the $425,000 award made by the district court was appropriate. Even though Hartleib provided a valuable service for Sprint, there is no statute which would allow him to recover fees or expenses. The court cannot make such an award in the absence of a statute.

STATUTES: K.S.A. 2017 Supp. 60-211, -22, -223(e), -223(h), -223a, -223a(a), -223a(b)(1), -223a(b)(2), -223a(b)(3), -223a(c), -223a(d), -259(f); K.S.A. 2016 Supp. 60-259(f)




criminal law - sentencing - statutes
state v. carter
sedgwick district court - affirmed in part, vacated in part
116,223 - April 27, 2018

FACTS: Carter used a Taser when she robbed a Dollar General Store. Jury convicted her of aggravated robbery. Finding Carter used a dangerous weapon, sentencing court imposed lifetime registration as a violent offender under the Kansas Offender Registration Act (KORA).  On appeal Carter challenged the sufficiency of the evidence supporting her conviction, arguing the Taser is not truly dangerous and she displayed the taser only after the robbery had been completed by putting the store’s money in her bag. She also challenged the registration requirement, arguing she did not use a deadly weapon. 

ISSUES: (1) Sufficiency of the evidence, (2) offender registration

HELD: For purposes of the aggravated-robbery statute, a subjective test is applied to determine whether the victim perceived the weapon as dangerous. Here, sufficient evidence supports Carter’s conviction for aggravated robbery. The victim raised her hands when Carter pulled out a Taser, the victim told a 911 operator that she had been threatened with a weapon, and the jury reviewed a videotape of the events which included a showing of the weapon as Carter was still gathering the money.

For purposes of KORA, an objective test is applied to determine if the defendant used a deadly weapon. Under KORA, a weapon is deadly only when, as used, the weapon is likely to cause death. In this case the State presented no evidence to show that a Taser is a deadly weapon as defined by KORA, thus Carter’s use of a Taser did not trigger the registration requirement. Carter’s registration as a violent offender is vacated. Conflict with another panel’s published opinion, State v. Franklin, 44 Kan.App.2d 156 (2010), is recognized and discussed.

STATUTES: K.S.A. 2015 Supp. 22-4902(e)(1), -4902(e)(2); K.S.A. 2014 Supp. 21-5420; K.S.A. 20-3018(b)


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April 20, 2018 Digests

Posted By Administration, Monday, April 23, 2018

Kansas Supreme Court


NO. 114,143—APRIL 20, 2018

FACTS: A law enforcement officer learned that there was a van parked in front of a convenience store that had been running for over an hour, and it appeared that the driver was slumped in the seat. The officer walked on foot to investigate, and he did see the driver slumped in the driver's seat. He knocked to initiate contact, concerned that the driver had a medical condition. Hanke awoke, startled. There was no smell of alcohol in the van, but the officer was concerned that Hanke appeared to be disoriented and had trouble focusing. Based on the officer's experience, he was concerned that Hanke might be under the influence. Hanke agreed to a search of his van, which revealed methamphetamine and marijuana. Hanke moved to suppress the results of the search but that request was denied, and he was convicted after a bench trial. A majority of the Court of Appeals' panel affirmed, finding that the encounter between law enforcement and Hanke was voluntary. Hanke's petition for review was granted.

ISSUE: Application of Fourth Amendment

HELD: It is irrelevant whether the encounter started as voluntary or as a public safety stop. Even if the court assumes that the stop was an investigatory detention, it was justified because the officer had reasonable suspicion of illegal activity. The detention was not illegal and Hanke's consent to search was not tainted.

STATUTES: No statutes cited

Kansas Court of Appeals


NO. 117,259—APRIL 20, 2018

FACTS: Gilkey had a lengthy career working in construction. He was injured in a work-related car accident in 2000, and as a result, was assigned some physical restrictions. But Gilkey was unaware of these restrictions, and he continued to perform strenuous manual labor until he was injured in an accident in 2014, which resulted in back surgery. His treating physician assigned a total whole body impairment rating after this 2014 accident, and rehabilitation experts assigned task loss percentages. The ALJ took this information and assigned a 53% work disability rating. But on appeal, a majority of the Board agreed with the employer that Gilkey's 2000 accident and work restrictions meant there was no actual task loss from the 2014 accident. Gilkey appealed.

ISSUE: Calculation of task loss.

HELD: K.S.A. 2017 Supp. 44-510e(a)(2)(D) requires the exclusion of theoretical work tasks when calculating task loss directly attributable to a new injury. The work restrictions assigned to Gilkey in 2000 were not permanent, since Gilkey continued to work without restriction for 12 years. This means there was actual task loss, and the case is remanded to allow for further Board review.

STATUTES: K.S.A. 2017 Supp. 44-508, -510e(a)(2)(C), -510e(a)(2)(D), 77-621(a)(1), -621(c), -621(c)(4); K.S.A. 2014 Supp. 44-510e(a)(2)(D)

NO. 117,352—APRIL 20, 2018

FACTS: Steve Endres was at work when he started feeling chest pains. He sought treatment from the company nurse, who diagnosed gastric reflux. Later that night, Steve suffered a heart attack and died. Steve's widow, Amy, sued both the nurse, Kimberly Young, and the employer. Both defendants responded by claiming that Amy's exclusive remedy was through the Kansas Workers Compensation Act, not through a tort action. The district court agreed and granted the motion to dismiss. Amy appealed.

ISSUES: Recovery under workers compensation

HELD: The workers compensation statutes were overhauled in 2011, in an attempt to limit the applicability of that act to injured workers. Now injury is compensable only if caused by an accident. Young's misdiagnosis cannot be seen as an accident, meaning the injury is outside of workers compensation. And because this was decided on a motion to dismiss, there are important facts missing. This case must be remanded for further proceedings.

STATUTES: K.S.A. 2017 Supp. 44-501(c)(1); K.S.A. 2016 Supp. 60-212(b)(6); K.S.A. 2015 Supp. 44-501b(b), -501b(d), -508(d), -508(e), -508(f)(1), -508(f)(2)(B)(ii), -508(g); K.S.A. 44-501(a), -501(c), -508(d)

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April 13, 2018 Digests

Posted By Administration, Tuesday, April 17, 2018

Kansas Supreme Court


constitutional law—criminal procedure—sentencing
state v. Gilkes
wyandotte district court—reversed as to issue subject to reveiw
court of appeals—reversed as to issue subject to review
no. 109,259—april 13, 2018

FACTS: Gilkes convicted of aggravated assault. On appeal he alleged trial errors and challenged his obligation to register as an offender under the Kansas Offender Registration Act (KORA), claiming in part the district court never made a finding on the record that Gilkes used a deadly weapon in the commission of the crime. In unpublished opinion, Court of Appeals affirmed the conviction and sentence, but remanded with directions to correct the journal entry to reflect the missing registration requirement. Review granted on Gilkes’ KORA claim.

ISSUE: KORA registration requirement

HELD: Pursuant to State v. Marinelli (No. 111227, this day decided), the question on appeal is whether Gilkes is a “violent offender” who must register under KORA. In this case, jury made the deadly weapon finding, but district court made no finding on the record that Gilkes used a deadly weapon to commit the offense. Unlike Marinelli, the journal entry of judgment in this case does not reflect the requisite finding. Gilkes is not an “offender” as defined by K.S.A. 2017 Supp. 22-4902(e)(2). Panel was without authority to remand the case to the district court to make the required on-the-record finding. The order to register as a violent offender is vacated. See State v. Thomas (No. 109951, this day decided).

CONCURRENCE AND DISSENT (Rosen, J., joined by Beier and Johnson, JJ.): Concurs in the result. Disagrees with majority’s determination that registration is not part of the criminal sentence and resulting constitutional infirmities. Agrees with reasons set forth in Justice Johnson’s concurring opinion in Thomas that address additional concerns in majority’s rationale in the instant case.

STATUTES: K.S.A. 2017 Supp. 22-3504(2), -4902(a), -4902(a)(1)(N), -4902(a)(2), -4902(e)(2); K.S.A. 20-3018(b), 22-4901 et seq.

appeals—constitutional law—criminal procedure—sentencing—statutes
state v. marinelli
riley district court—affirmed; court of appeals—affirmed
no. 111,227—april 13, 2018

FACTS: Marinelli entered no contest plea to aggravated assault with a deadly weapon. District court addressed at sentencing, rather than at time of conviction, the registration requirement under the Kansas Offender Registration Act (KORA). On direct appeal, Marinelli claimed he should be excused from registration requirements because district court failed to comply with KORA’s statutory procedures. Court of Appeals affirmed in unpublished opinion. Review granted to consider whether Marinelli is a “violent offender” as defined by K.S.A. 2012 Supp. 22-4902(e)(2), and if so, whether he is excused from KORA’s registration requirement because the district court failed to comply with KORA’s statutory directive to notify him at the time of conviction of his duty to register.

ISSUES: (1) Appellate jurisdiction, (2) noncompliance with KORA statutory procedures

HELD: Issue of first impression as to whether a defendant who has entered a guilty or no contest plea has available grounds, in the KORA context, for a direct appeal. Court reviews caselaw permitting sentencing appeals following a plea of guilty or nolo contendere, and holds that KORA is not part of a defendant’s sentence. Rather, the duty to register under KORA arises (“springs into existence”) by operation of law upon the existence of distinct sets of statutory conditions identified in the opinion. Accordingly, there is jurisdiction to consider Marinelli’s direct appeal of the district court’s order to register under KORA. To be valid that registration requirement must be predicated on the district court’s finding that Marinelli used a deadly weapon in the commission of his offense. That action is appropriately viewed under K.S.A. 2017 Supp. 22-3601(a) as a judgment, decision, or intermediate order in the case.

District court’s order that Marinelli comply with KORA is affirmed. Under facts in this case and documents filed by the court, including a Sentencing Guidelines Journal Entry of Judgment, district court made the requisite finding on the record that Marinelli was a violent offender. District court’s failure to inform Marinelli on the record at the time of conviction about the procedure to register and KORA requirements did not excuse his registration obligations.

CONCURRENCE (Rosen, J., joined by Beier and Johnson, JJ.): Agrees there is jurisdiction under K.S.A. 2017 Supp. 22-3602(a) to decide if the KORA registration responsibilities imposed by the district court are invalid. Criticizes the majority’s excursion into whether KORA provisions are sentencing provisions, and its misinterpretation of State v. Jackson, 291 Kan. 34 (2010). Agrees with rationale of Justice Johnson’s concurring opinion in State v. Thomas (1099951 this day decided) that concludes the KORA registration is part of the sentencing in that case. Citing his disagreement with State v. Petersen-Bead, 304 Kan. 192, cert. denied 137 S.Ct (2016), would hold there is jurisdiction based on the court’s longstanding rule that a defendant may appeal from the sentence imposed after a plea of guilty or nolo contendere.

STATUTES: K.S.A. 2017 Supp. 22-3601, -3602, -3602(a), -4902, -4902(a), -4902(a)(4), -4902(a)(5), -4902(b)(2), -4902(c)(18), -4902(e)(2), -4902(f), -4903, -4903(a), -4904, -4904(a)(1)(A), -4904(a)(1)(B), , -4904(a)(1)(B)(iii), -4906, -4906(a)(1)(M), -4906(a)(1)(N), -4906(f), -4906((f)(2), -4906(g), -4906(i); K.S.A. 2012 Supp. 22-4902(e)(2), -4904(a)(1)(A); K.S.A. 22-2103, -3424, -3602(a), -4901et seq., 60-1507; K.S.A. 22-3602(a) (Ensley); K.S.A. 22-3601 (Weeks); K.S.A. 62-1701 (Corrick)

criminal procedure—restitution—sentencing
state v. meeks
shawnee district court—affirmed; court of appeals—affirmed
no. 113,593—april 13, 2018

FACTS: Meeks pleaded guilty to felony theft of a vehicle. District court sentenced Meeks to 11 month prison term, 12 month postrelease supervision, and ordered Meeks to pay $14,356.21 in restitution—the fair market value of the car plus the victim’s deductible—upon his release from prison and until paid in full. Meeks appealed the restitution order, arguing the amount made any plan unworkable due to his limited resources. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUE: Restitution - unworkable plan

HELD: Wariness stated with rigid definition of an “unworkable” plan of restitution that has been evolving in Court of Appeals’ caselaw. The opinion reiterates that unworkability should be evaluated on a case-by-case basis, and cites relevant factors for consideration. On the facts in this case, the district court did not abuse its discretion when it ruled that Meeks failed to show a restitution plan was unworkable.

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

STATUTE: K.S.A. 2017 Supp. 21-6604, -6604(b)(1)


state v. pewenofkit
sedgwick district court—court of appeals dismissal of the appeal—affirmed
no. 109,542—april 13, 2018

FACTS: Pewenofkit pleaded no contest to kidnapping, aggravated kidnapping, and aggravated burglary. Prior to his plea, Kansas Offender Registration Act amended in 2011 to enlarge the registration requirement from ten years to lifetime registration. On appeal Pewenofkit argued for first time that imposition of the lifetime registration requirement violated the Ex Post Facto Clause. In unpublished opinion, Court of Appeals sua sponte dismissed the appeal, stating Pewenofkit failed to explain why the issue should be considered for the first time on appeal, and failed to provide any factual basis upon which to analyze his ex post facto claims on appeal. Review granted.

ISSUE: Appeal on issue not raised in district court

HELD: Pewenofkit’s petition for review failed to challenge the panel’s holdings as error. Panel’s dismissal of the appeal is affirmed

STATUTE: K.S.A. 22-4901 et seq.

appeals—constitutional law—criminal procedure—sentencing
state v. redick
shawnee district court—convictions affirmed—sentence vacated—remanded
no. 113,300—april 13, 2018

FACTS: In trial to the court, Redick was convicted of premeditated first-degree murder and arson in the killing of his girlfriend and burning of her car. District court granted defense counsel’s request for sequestration order. When defense called its first witness and admitted the witness had been in the courtroom during the state’s case, the district judge disallowed the witness’ testimony because the witness had violated the sequestration order. District judge imposed a hard 25 life sentence for the first-degree murder charge, identified the murder conviction as the “primary crime,” and sentenced Redick to 13 months on the arson, based in part on a criminal history score of “I.” On appeal Redick challenged: (1) the adequacy of his waiver of the right to jury trial, specifically the judge’s failure to tell him that a jury’s guilty verdict would have to be unanimous; (2) the district judge’s refusal to admit testimony from a defense witness who had violated the sequestration order; and (3) the legality of his sentence.

ISSUES: (1) Waiver of jury trial, (2) violation of sequestration order and exclusion of testimony, (3) illegal sentence

HELD: Waiver issue, raised for first time on appeal, is addressed on the merits. On record in this case, Redick’s waiver of his right to a jury trial was knowing and voluntary. State v. Frye, 294 Kan. 364 (2012), is factually distinguished. District judge’s colloquy during the waiver hearing was minimally adequate; her failure to specifically address the requirement that a guilty verdict be unanimous was not fatal; and Redick demonstrated his awareness and understanding of the right he affirmatively chose to surrender. Court would have preferred that the district judge explained steps that could have been taken to ensure the seating of a fair and impartial jury whose participation would have been unadulterated by prejudicial press coverage, but the omission of this information did not render Redick’s waiver unacceptable.

District judge erred as a matter of law and thus abused her discretion to the extent she treated exclusion of the defense witness’ testimony as an automatic consequence of the violation of the sequestration order. But it is impossible to determine whether the legally erroneous exclusion was harmless because defense counsel failed to proffer the unidentified witness’ testimony, and substantial circumstantial evidence supports the conviction.

Redick’s claim that his sentence violated the double rule lacks merit because that rule does not apply to off-grid sentences. However, district judge erred in identifying the off-grid crime of first-degree murder as the primary crime, with resulting error in the criminal history score used for calculating Redick’s sentence.Redick’s sentence is vacated and case is remanded for resentencing using the on-grid crime of arson as the primary crime.

CONCURRENCE (Biles, J., joined by Nuss C.J. and Stegall, J.): Agrees with majority opinion except for the jury trial waiver claim. Concurs in the result on that claim, but would affirm the district court on this point as generically as it was argued in Redick’s brief, and would hold that any argument on a more specific concern of potential juror bias was abandoned as not briefed.

STATUTE: K.S.A. 2016 Supp. 21-6604(f)(2), -6606(c), -6804, -6819(b)(3)

appeals—constitutional law—criminal procedure—sentencing
state v. rocheleau
sedgwick district court—affirmed
court of appeals—reversed
no. 110,243—april 13, 2018

FACTS: Rocheleau entered guilty plea to aggravated indecent solicitation of a child. Sentence imposed included lifetime registration under the Kansas Offender Registration Act (KORA) as amended in 2011. Rocheleau appealed, arguing lifetime registration violated the Ex Post Facto Clause because it exceeded the pre-2011 amendment registration period applicable at the time of his crime. In unpublished opinion Court of Appeals dismissed the appeal because the notice of appeal only mentioned sentencing, holding this limited its jurisdiction because KORA registration was not part of a criminal sentence. Review granted.

ISSUES: (1) Appellate jurisdiction, (2) Ex Post Facto Clause

HELD: Rocheleau’s notice of appeal should be read broadly enough to encompass his KORA challenge under the conflicting caselaw existing when he appealed. After State v. Marinelli (111227, this day decided), a criminal defendant pursuing KORA challenges is advised not to recite in the notice of appeal that the defendant is appealing only sentencing issues.

Holding in State v. Petersen-Beard, 304 Kan. 192, cert. denied 137 S.Ct. 226 (2016), defeats Rocheleau’s ex post facto claim. The lifetime registration requirement is affirmed.

CONCURRENCE (Malone, J.): No change to his position in his concurring opinion in State v. Watkins, 306 Kan. 1093 (2017), wherein he expressed disagreement with Petersen-Beard but the principle of stare decisis compelled his concurrence with the majority in that case.

CONCURRENCE AND DISSENT (Johnson, J., joined by Beier and Rosen): Agrees there is jurisdiction to hear the appeal. Disagrees with majority’s determination that KORA registration is not part of the criminal sentence.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with her votes in Petersen-Beard and other cases dealing with Eighth Amendment and Ex Post Facto claims, dissents from majority’s holding that lifetime sex offender registration is not punishment.

STATUTES: K.S.A. 2017 Supp. 22-3601, -3602(a), -3608(c), 60-102, -2103, -2103(b); K.S.A. 22-2103, -3606, -4901 et seq.

constitutional law—criminal procedure—sentencing—statutes
state v. thomas
sedgwick district court—affirmed in part, reversed in part
court of appeals—affirmed in part, reversed in part
no. 109,951—april 13, 2018

FACTS: Thomas convicted of aggravated battery for using a stiletto heel to attack a fellow dancer. District court informed Thomas at sentencing of her duty to register under Kansas Offender Registration Act (KORA) as a violent offender, but never made a finding on the record that a deadly weapon was used in the commission of the crime. On appeal Thomas claimed: (1) district court erred by disallowing cross-examination of victim about victim’s civil action against their mutual employer; (2) prosecutor’s closing argument misstated the evidence and diluted State’s burden of proof; (3) cumulative error denied her a fair trial; and (4) her KORA registration obligation should be excused. In unpublished opinion, Court of Appeals affirmed the conviction, vacated the registration requirement, and remanded to the district court for consideration of the deadly weapon question. Thomas’ petition for review granted on all issues, and on her challenge to the remand.

ISSUES: (1) Right of confrontation, (2) prosecutorial error, (3) remand for resentencing

HELD: No abuse of district court’s discretion in excluding evidence concerning the victim’s civil lawsuit. Under facts in case, district court did not cut off Thomas’ ability to confront the victim, and Thomas failed to show how details in the civil case could have provided any basis to impeach the victim’s testimony.

Prosecutor confused the parties during closing argument. This misstatement argued facts not in evidence, but the error was isolated and harmless under facts in the case.

Cumulative error doctrine not available for a single prosecutorial error.

State filed no cross-petition, so no review of panel’s holding that the KORA obligation to register as a violent offender must be triggered by the district court’s explicit finding on the record that a deadly weapon was used in the commission of a crime. But see State v. Marinelli (111227, this day decided)(holding such a finding is required before the obligation to register arises under KORA). In this case, no statutorily defined condition identified in Marinelli exists, thus the obligation to register never springs into existence. The absence of a court-made finding on the record that Thomas used a deadly weapon is not a sentencing error. The remand order is vacated.

CONCURRENCE AND DISSENT (Rosen, J., joined by Beier and Johnson, JJ.): Agrees that remand is not needed. Dissents from majority’s interpretation of KORA as applied, and disagrees with its underlying position that KORA is not a sentencing statute that increases punishment for designated convictions. Agrees with Justice Johnson’s rationale and conclusion in his concurring opinion that KORA registration is a part of sentencing.

CONCURRENCE (Johnson, J, joined by Beier and Rosen, JJ.): Concurs with the result, but challenges the majority’s newly manufactured “springing obligation” theory to support its theory that Thomas’ KORA registration obligation was not part of the sentence imposed. Would hold the district court’s sentencing pronouncement ordering Thomas to register under KORA was illegal because it did not conform to applicable statutory provisions. Would vacate that part of the pronounced sentence and hold that pursuant to the lawful sentence entered, Thomas is not required to register under KORA.

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -4902(a), -4902(a)(5), -4902(b)(2), -4902(b)(3), -4902(b)(4), -4902(c), -4902(c)(18), -4902(d), -4902(e), -4902(e)(2), -4902(f), -4904(a)(1)(B), -4904(a)(1)(B)(iii), -4906(a)(1)(M), -4906(f), -4906(g); K.S.A. 2012 Supp. 22-4904(a)(1)(A); K.S.A. 2011 Supp. 21-5413(b)(1)(B), 22-4902(e)(2), -4904(a)(2); K.S.A. 22-2101 et seq., -4901 et seq., 60-101 et seq.

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