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September 6, 2019 Digests

Posted By Administration, Tuesday, September 10, 2019

Kansas Supreme Court

CIVIL

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

NO. 115,628—SEPTEMBER 6, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

Criminal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

Court of Appeals

CIVIL

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

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

ISSUE: (1) Ability to change name while incarcerated

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

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

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