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July 10, 2020 Digests

Posted By Administration, Monday, July 13, 2020

Kansas Supreme Court

Civil

ADOPTION
IN RE ADOPTION OF BABY GIRL G.
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED, CASE REMANDED
NO. 121,051—JULY 10, 2020

FACTS: Baby Girl G. was born in 2018. The day after her birth the natural mother signed a consent to adoption and relinquished her parental rights. In that consent form, she named two men as possible fathers. The adoptive parents filed actions in district court seeking to terminate the parental rights of natural mother and both men named as possible fathers. A month later, Father filed a voluntary acknowledgement of paternity and indicated his intent to contest the adoption. After an evidentiary hearing, the district court found that Father failed to provide meaningful support to natural mother during the final six months of her pregnancy. The district court also found that Father was unfit on several grounds, but it elected not to use them as a basis for termination. Father's parental rights were terminated. The court of appeals affirmed that ruling but reversed the award of attorney fees and remanded the case to district court for further consideration of that issue. Father's petition for review was granted.

ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 59-2136(h)(1)(D); (2) whether there was adequate evidence of a failure to support;

HELD: The court declines to address the constitutional issue because it was not raised before the district court or court of appeals. It is not sufficient to raise a new issue for the first time in a petition for review, and counsel presented inconsistent arguments to the appellate courts. There was sufficient evidence to support the district court's decision that Father failed to support the natural mother during the last six months of her pregnancy. Father's non-financial support was minimal and of little value to the mother and his financial support was inconsequential.

DISSENT: (Stegall, J.) Justice Stegall would consider the merits of Father's constitutional claim in order to serve the ends of justice. Preservation is a prudential rule rather than a jurisdictional bar and it can be waived if justice requires. The disparate treatment for unwed biological fathers in adoption cases is troubling.

STATUTE: K.S.A. 2019 Supp. 59-2136, -2136(h), -2136(h)(1)

JURISDICTION—TAXATION
IN RE EQUALIZATION APPEALS OF TARGET CORPORATION
BOARD OF TAX APPEALS—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED TO THE COURT OF APPEALS
NO. 119,228 – JULY 10, 2020

 FACTS: Target is one of several commercial real estate owners in Johnson County which appeals the County's ad valorem tax valuation for the 2016 tax year on seven commercial properties. After an evidentiary hearing, the Board of Tax Appeals issued a summary decision ordering lower values for each property. The Taxpayers promptly requested a full and complete written opinion. Five weeks later, the Taxpayers confirmed that the County did not request a full and complete written opinion and subsequently withdrew their request. The County objected, asking BOTA to issue a full and complete written opinion regardless of the withdrawal. The County noted that it didn't learn of the withdrawal until it was too late to file its own request. In the alternative, the County asked that BOTA consider the objection as a request for reconsideration of the summary decision. BOTA denied both requests and the County appealed. The court of appeals dismissed the appeal for lack of jurisdiction and the petition for review was granted.

ISSUES: (1) Jurisdiction; (2) scope of review

HELD: The Kansas Judicial Review Act provides the exclusive means for judicial review of agency action. There is not a final order in this case because there is no full and complete written opinion and the Taxpayers did not seek a trial de novo in district court. The KJRA does allow for limited review of nonfinal agency actions if certain conditions are met. BOTA's failure to issue a full and complete written opinion is properly considered a nonfinal agency decision. K.S.A. 77-631(a) allows for an appeal from an agency's failure to act in a timely manner. The County was an aggrieved party, as that term is used in K.S.A. 74-2426(c). BOTA's refusal to issue the full and complete written opinion was an order and is appealable on an interlocutory basis. The case is remanded to the court of appeals for further consideration of whether BOTA acted properly in failing to issue a full and complete opinion. Because there has not been a final decision the court of appeals cannot yet address the merits of the County's argument.

criminal

appellate procedure—criminal procedure—evidence
state v. brazzle
riley district court—affirmed; court of appeals—affirmed
no. 116,649—july 10, 2020

FACTS: Following car stop and subsequent discovery of drugs, Brazzle was convicted of drug-related crimes including possession of methamphetamine with intent to distribute and possession of oxycodone. During trial, district court found the State’s prior crime evidence of Brazzle’s sale of methamphetamine to undercover detective was admissible to show whether Brazzle intended to distribute the methamphetamine found in the car. On appeal, Brazzle claimed: (1) district court erred in admitting K.S.A. 60-455 evidence related to the prior methamphetamine sales; (2) jury instruction on possession of oxycodone did not require jury to find that he illegally possessed the drug without a prescription; and (3) insufficient evidence supported his conviction for possession of oxycodone. Court of appeals affirmed, finding in part that Brazzle could not claim instructional error on appeal because he advocated for the version of the instruction given to the jury. 54 Kan.App.2d 276 (2018). Review granted.

ISSUES: (1) Evidence of prior crimes; (2) invited error; (3) sufficiency of the evidence

HELD: District court did not err in admitting prior crimes evidence under K.S.A. 60-455. Caselaw on evidence of intent for simple possession is distinguished from possession with intent to distribute. If a defendant argues he or she lacked the intent to distribute drugs, evidence about a prior crime committed by the defendant may be material, especially if evidence establishes similarities between the prior crime and the charged crime. Under facts in this case the prior crimes evidence was material to and probative of Brazzle’s intent to distribute, and the risk for undue prejudice did not substantially outweigh the probative value.  

            By failing to argue in his petition for review why the court of appeals erred in its invited error analysis, Brazzle waived any argument he might have as to why the invited error doctrine did not apply to his claim of instructional error.

            Sufficient evidence supports Brazzle’s possession of oxycodone conviction. There was circumstantial evidence that oxycodone was part of Brazzle’s illicit drug inventory, and jury could infer Brazzle would not put his own prescription medication in same bag containing drugs that he intended to distribute. Officer’s testimony comparing the appearance of Brazzle’s pills to an image of a pill identified as oxycodone on drugs.com was sufficient. Brazzle did not object to officer’s testimony regarding how he identified the pills found in the car, and did not object to the pills being entered into evidence. Brazzle cannot recast an evidentiary ruling as a sufficiency argument.

STATUTES: K.S.A. 2019 Supp. 60-455; K.S.A. 2015 Supp. 21-5702(b), -5705(e)(2), -5706(a), 65-4116(c)(3); K.S.A. 60-404, -455 Civil 

criminal procedure—juries—motions—statutes
state v. carter
sedgwick district court—affirmed
no. 119,315—july 10, 2020

FACTS: State filed charges against Carter arising from Carter hitting and threatening a victim (Crowe) in November 2015, and arising from a December 2015 shooting that resulted in the death of two other victims. District court granted State’s motion to consolidate the charges, finding the charges were connected. Jury convicted Carter of first-degree felony murder, criminal discharge of a firearm, aggravated battery, and criminal threat. On appeal, he claimed district court erroneously refused to add language to the aiding and abetting instructing that “mere presence” alone does not establish mental culpability to convict under aiding and abetting, citing State v. Llamas,  298 Kan. 246 (2013), and the “better practice” recommendation in State v. Hilt,  2999 Kan. 176 (2014), to give such language. Carter also claimed the district court erred in consolidating the charges.

ISSUE: (1) Jury instruction—aiding and abetting; (2) motion to consolidate

HELD: Court rejects Carter’s argument for converting “better practice” into a legal requirement that “mere presence” language must be included in cases where a defendant is charged under an aiding and abetting theory and requests the instruction. While there was a modicum of evidence that Carter’s requested instruction was factually appropriate, any possible error in failing to give the requested instruction was harmless given the weight of evidence supporting Carter’s guilt.

            District court’s decision to consolidate the charges is affirmed. Cases involving consolidation decisions are discussed. In this case, Carter’s battery of Crowe precipitated the factual setting which led to Carter’s participation in the shooting.  District court correctly found a statutory condition for consolidation was met, and did not abuse its discretion in allowing consolidation.    

STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 22-3202, -3202(1), -3202(3), -3203,

 

Kansas Court of Appeals

  CRIMINAL

criminal procedure—evidence—juries—motions—sentencing
state v. williams
sedgwick district court—affirmed in part, reversed in part, remanded
no. 120,768—july 10, 2020

FACTS: Jury convicted Williams of rape of 13-year old girl. During trial State introduced DNA results of one of multiple swabs taken from victim. Sentencing court imposed concurrent hard-25 life sentences, but journal entry also stated that Williams was subject to lifetime postrelease supervision for each crime. Williams filed pre-sentence motion for postconviction DNA testing of all swabs. District court summarily denied both that motion and Williams’ post-sentencing motion for reconsideration, stating only that the motion was unripe and K.S.A. 2019 Supp. 21-2512(a) did not apply. Williams appealed claiming: (1) district court erred by allowing State to exercise a peremptory strike in the midst of jury selection and prior to defense questioning of the jury panel; (2) verdict form which placed the line for finding the defendant “guilty” above “not guilty” infringed the presumption of innocence; (3) cumulative effect of these two errors denied him a fair trial; (4) journal entry of sentencing erroneously included lifetime postrelease supervision; and (5) district court erred by summarily denying his motions for postconviction DNA testing. 

ISSUES: (1) Peremptory challenge; (2) verdict form; (3) cumulative error; (4) sentencing; (5)  postconviction motion for DNA testing

HELD: Timing of State’s peremptory challenge, though unusual, was not improper and did not violate Williams’ right to a fair trial. Each party voluntarily used one peremptory challenge before the State passed the jury for cause, and used their remaining peremptory challenges after Williams approved the jury. This did not violate Kansas case law or K.S.A. 22-3411a.

            Wording of the verdict form did not violate Williams’ presumption of innocence. Kansas Supreme Court cases have rejected William’s position.

            No errors shown for application of cumulative error doctrine.

            Williams’ convictions are affirmed but case is remanded to district court for correction of error in the sentencing journal entry. A sentencing court cannot order lifetime postrelease supervision when a person has been convicted of an off-grid crime. And the journal entry erroneously recorded the effective sentence announced from the bench.

            Because district court did not rule on Williams’ motion until after pronouncing sentence, the motion was not “unripe.” District court’s summary denial of the request for postconviction DNA testing is reversed. Case is remanded so district court can articulate its findings and conclusions under the procedure outlined by Kansas statutes and Kansas Supreme Court caselaw.        

STATUTES: K.S.A. 2019 Supp. 21-2512, -2512(a), -2512(a)(1)-(3), -2512(c); K.S.A. 22-3411a

 

 

 

 

 

Tags:  adoption  appellate procedure  board of tax appeals  criminal procedure  evidence  juries  jurisdiction  motions  procedures  Riley District Court  Sedgwick District Court  sentencing  statutes  taxation 

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November 22, 2019 Digest

Posted By Administration, Monday, November 25, 2019

Kansas Court of Appeals

Civil

ADOPTION—PARENTAL RIGHTS
IN RE ADOPTION OF E.D.
JOHNSON DISTRICT COURT—AFFIRMED
NO. 120,797—NOVEMBER 22, 2019

FACTS: Mother met E.D. while doing field work in Africa. She obtained a six-month visa so that E.D. could receive medical care in the United States. Mother adopted E.D. in 2011. The next year, Mother arranged for a couple she knew (Guardians) to parent E.D. while Mother traveled for work. They became E.D.'s legal guardians. Mother kept in contact with E.D. until 2014, when her communications became concerning and the Guardians limited Mother's contact with E.D. A court proceeding allowed Mother to have supervised visitation with E.D., but Mother only rarely exercised her visitation rights. The Guardians were concerned because E.D. was living in this country illegally. They attempted to work with Mother to start E.D.'s citizenship process but were unable to make any progress. The Guardians then filed a motion seeking the termination of Mother's parental rights so that they could adopt E.D. The district court granted both requests, and Mother appeals.

ISSUES: (1) Jurisdiction for the district court to terminate rights; (2) sufficiency of the evidence

HELD: The Guardians filed a single petition which sought both the termination of Mother's parental rights and permission to adopt E.D. The only issue identified in Mother's notice of appeal was the termination of her parental rights. There were no errors in the process related to the termination of rights and Mother's complaints to the contrary are without merit. Because Mother's notice of appeal did not identify any deficiency caused by the filing of the consent to adopt a day after the petition was filed, the court need not address that issue. There was sufficient evidence to support the district court's finding that Mother failed to assume a parental role in the two years prior to the adoption.

STATUTE: K.S.A. 2018 Supp. 59-2112(b), -2112(c), -2112(d), -2128(f), -2129(a), -2136(d)(1), -2136(h)(1), -2136(h)(2)

Tags:  adoption  jurisdiction  sufficiency of evidence  termination of rights 

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January 23, 2015, Digests

Posted By Administration, Tuesday, January 27, 2015
Updated: Monday, February 10, 2020

Kansas Supreme Court

Civil

JURISDICTION AND FINAL DECISION
KAELTER V. SOKOL ET AL.
JOHNSON DISTRICT COURT – APPEAL DISMISSED
COURT OF APPEALS – VACATED
NO. 107,401 – JANUARY 23, 2015

FACTS: In 2007, Kaelter sued her long-time boyfriend, Sokol, seeking determinations of paternity, custody, and support; and an equitable division of the parties' jointly acquired assets. The parties have hotly contested these issues and others at every turn. After Kaelter filed suit, the district court referred the matter to a special master, who made findings of fact and conclusions of law without conducting formal hearings. Over Sokol's objection, the district court adopted those findings and conclusions and entered judgment on the master's report without hearing evidence. The judgment included an order that Sokol pay Kaelter a sum representing the minor child's unreimbursed medical expenses. On the parties' motions for reconsideration, the district court entered additional orders, including its decision to make its own determination regarding the unreimbursed medical expenses. Sokol appealed, arguing about the district court's refusal to hold an evidentiary hearing; the master's failure to conduct proceedings in accordance with K.S.A. 60-253 (setting out procedure for trial by special masters); and whether Sokol timely appealed based on whether various motions for reconsideration filed with the district court after each of its rulings tolled the time to appeal. The Court of Appeals held that Sokol failed to timely appeal portions of the judgment but could pursue one issue relating to the failure of the master to take an oath. The panel then affirmed the district court's order, ruling Sokol failed to exercise reasonable diligence to object when he first learned the master did not take an oath while the master was still working on the case. Kaelter, 2013 WL 1876444, at *8. After the panel filed its opinion, it granted Kaelter's request for appellate costs and attorney fees.

ISSUES: (1) Jurisdiction; and (2) final decision

HELD: Court stated the jurisdictional issue arises because the district court's written journal entry memorializing the additional orders, filed October 27, 2010, indicated the district court could not at that time "determine an appropriate division of past medical expenses" due to a lack of sufficient documentation. The journal entry further stated the district court anticipated the filing of a future motion for those unreimbursed medical expenses and an exchange of information between the parties in the hope that a resolution could be reached. Court found the record on appeal does not show the issue was ever resolved before Sokol initiated this appeal. Court held the district court did not enter a final decision, having left unresolved the unreimbursed medical expenses issue. Therefore, the Court of Appeals lacked jurisdiction. For that reason, the judgment of the Court of Appeals affirming the district court is vacated. Court applied the same rationale and vacated the panel's order awarding costs and attorney fees to Kaelter, which Sokol challenged in his briefing as an abuse of discretion.

STATUTES: K.S.A. 20-3018; K.S.A. 23-2216; and K.S.A. 60-253, -2102

Kansas Court of Appeals

Civil

ADOPTION, TERMINATION OF PARENT RIGHTS, AND ATTORNEY FEES
IN RE F.
SEDGWICK DISTRICT COURT – AFFIRMED
NO. 111,253 – JANUARY 23, 2015

FACTS: With the approval of the birth mother, John and Anne sought to adopt a baby girl born in Wichita on December 31, 2012. The girl's natural father, Lonnie, did not agree to relinquish his parental rights, but the district court terminated his parental rights and granted John and Anne's adoption petition after a contested, one-day trial. The court concluded that Lonnie had failed without reasonable cause to provide support for the birth mother during the 6-month period before the child's birth, that he was unfit as a parent, that he had abandoned the mother after learning of the pregnancy, and that he had made no reasonable efforts to support the child after her birth. Before trial, the court had found that Lonnie was partially indigent and had ordered that he pay $500 toward his attorney's fees. Lonnie paid $100. Lonnie's attorney, Eric Hartenstein, presented a total bill to the court of $5,622.77. That amount reflected Lonnie's $100 payment; it also included expenses of $262.77 ($105 for serving court papers and $157.77 for a deposition transcript). The rest of the bill reflected Hartenstein's time spent on the case at $150 per hour. John and Anne argued in the district court that Hartenstein should be limited to $80 per hour based on the fee paid in criminal cases. The district court concluded that it had the discretion to award that or a higher amount, and awarded $5,360 in fees and $262.77 in expenses.

ISSUES: (1) Adoption; (2) termination of parent rights; and (3) attorney fees

HELD: Court held fee award in this case was authorized by K.S.A. 59-2134, which has no language limiting the court's discretion in determining the proper amount of the attorney fees. Court stated that K.S.A. 22-4507, which applies only to attorneys appointed to represent indigent criminal defendants, does not set a limit on fees in other type of cases. Court similarly awarded attorneys fees and expenses against John and Anne for the work performed on appeal in the amount of $3,853.02

STATUTES: K.S.A. 22-4507; and K.S.A. 59-2134

Criminal

STATE V. PEARCE
MIAMI DISTRICT COURT – APPEAL SUSTAINED
NO. 110,435 – JANUARY 23, 2015

FACTS: Pearce, with four previous burglary convictions that included one person-felony conviction for residential-burglary, entered guilty plea to a fifth burglary. Sentencing court accepted Pearce’s argument that K.S.A. 2013 Supp. 21-6810(d)(9) and rule of lenity prevented the court from counting the prior residential burglary when calculating Pearce’s criminal-history score. State appealed on question reserved.

ISSUES: (1) State’s appeal of criminal history score of recidivist burglar

HELD: Statutes controlling this case are K.S.A. 2013 Supp. 21-6804(l) (the recidivist-burglar provision) and K.S.A. 2013 Supp. 21-6810(d)(9) (the exclusion of some convictions when scoring a defendant’s criminal history). District court erred when it excluded one of Pearce’s burglary convictions in determining the criminal-history score because none of the conditions for exclusion are met in this case. State v. Zabrinas, 271 Kan. 422 (2001), is distinguished as applying K.S.A. 21-6804(l) before legislature eliminated the "applicable penalties” language in 2010. Answer in this case is of statewide importance. No appellate decisions discuss the elimination of the "applicable penalties” language in K.S.A. 21-6804(l), and this opinion alerts bench and bar that these cases - decided based on statutory language no longer in place - may no longer be good law. States appeal is sustained.

DISSENT (Atcheson, J.): Dissents from majority’s decision to entertain the matter at all because State’s appeal fails to present a legal question of statewide interest or importance. Parties in this case argue the question reserved as if K.S.A. 2013 Supp. 21-6810(d)(9) had never been amended, and seek a ruling on how to construe language the legislature repealed in 2010. Would dismiss the appeal for lack of jurisdiction.

STATUTES: K.S.A. 2013 Supp. 21-5807(a)(1), -5807(c)(1)(A), -6804(a), -6804(l), -6809, -6810(d)(9); K.S.A. 2013 Supp. 22-3602(b)(3); K.S.A. 21-4710(d)(11); and K.S.A. 2009 Supp. 21-4704(1)

Tags:  adoption  Johnson District Court  Miami District Court  parent rights  recidivist burglar  Sedgwick District Court  termination of parent rights 

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