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April 8, 2016, Appellate Court Digests
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Kansas Supreme Court – Attorney Discipline

ORDER OF Supervised Probation
IN THE MATTER OF David Ben Mandelbaum
NO. 114,830 – April 8, 2016

FACTS: A hearing panel determined that Mandelbaum violated several of the Kansas Rules of Professional Conduct (KRPC), including 1.8(a) and 1.8(e). Mandelbaum answered and promptly filed a probation plan. The charges arose after Mandelbaum kept settlement proceeds in trust at the request of his client, then received verbal permission to borrow against those funds. He did not advise his client to seek advice from counsel. All of the money was returned to the client. Mandelbaum also advanced funds to for living expenses to multiple clients.

HEARING PANEL: After finding that Mandelbaum violated several of the KRPC, the panel noted that while there was a great deal of potential injury to his clients, there was no evidence that Mandelbaum converted client property. He timely repaid any money that he borrowed and fully cooperated with the disciplinary process. The panel recommended that Mandelbaum be indefinitely suspended from the practice of law, but that imposition should be suspended and Mandelbaum allowed to practice under supervision for two years.

HELD: The court accepted the hearing panel's recommendation. In addition to the supervision, Mandelbaum was given numerous conditions that must be satisfied in order to avoid suspension. A minority of the court would have imposed more severe discipline.

Kansas Supreme Court – Criminal

Evidence; Statutory Interpretation; Sufficiency of Evidence
State v. Boysaw
Sedgwick District Court – Affirmed
No. 112,834 – April 8, 2016

FACTS: Boysaw was charged with aggravated indecent liberties. Before Boysaw's trial, the State moved to admit evidence of his 1987 Nebraska conviction for sexual assault of a child, and at the hearing on the motion they expanded the request to include a 1979 sex crime conviction. Finding a "striking similarity" between the 1987 crime and the one being tried, the district court allowed evidence of that conviction, but excluded the 1979 offense. The evidence was presented to the jury as a stipulation, over Boysaw's objection. Because of his prior convictions, Boysaw was sentenced as a habitual sex offender. He appealed the conviction, primarily on evidentiary grounds.

ISSUES: (1) Whether the evidence presented at trial was sufficient to sustain a conviction absent evidence of Boysaw's intent to arouse or satisfy sexual desires, (2) Whether K.S.A. 2015 Supp. 60-455(d) violates the constitution by allowing for the admission of evidence of general propensity, (3) Whether prior crimes qualified Boysaw as a habitual sex offender

HELD: Aggravated indecent liberties is a specific intent crime, and intent to arouse or to satisfy sexual desires is an element that must be proven to the jury, either by direct or by circumstantial evidence. At trial, there was both direct and circumstantial evidence sufficient for the jury to conclude that Boysaw intended to arouse or to satisfy his sexual desires. Evidence of the commission of unrelated crimes is inadmissible because that evidence is unduly prejudicial to the defendant. But through K.S.A. 60-455 and its amendments, evidence of a defendant's commission of acts or offenses of sexual misconduct is admissible and may be considered if it is relevant and probative to the matter at hand. That statute does not violate an accused's due process rights as long as the prior conviction evidence is relevant, especially in light of Kansas' common law evidentiary history. Boysaw's Nebraska conviction was for a crime similar enough to aggravated indecent liberties with a child as to warrant the habitual sex offender label.

Logsdon’s hard 50 life sentence was illegally imposed in light of Alleyne v. United States, 570 U.S. __, 133 S.Ct. 2151 (2013), State v. Soto, 299 Kan. 102 (2014), and State v. Warren, 302 Kan. 601 (2015). State’s suggestion for nunc pro tunc or amended journal entry of sentencing is rejected. Remanded for resentencing.

STATUTES: Kansas Constitution Bill of Rights § § 10 and 18; K.S.A. 2015 Supp. 21-5506(b)(3)(A), -6626, 60-455(d); K.S.A. 60-455

Kansas Supreme Court – Criminal

Evidence; Speedy Trial; Statutory Interpretation
State v. Dupree
Sedgwick District Court – Affirmed
No. 111,518 – April 8, 2016

FACTS: Dupree was identified as being part of a group of men who burglarized a residence and murdered an occupant of the home. While he admitted to making threatening phone calls, Dupree denied being involved with the burglary and murder. Multiple individuals named Dupree as the "mastermind" of the crime, even though video evidence did not put him at the crime scene. After he was convicted of multiple crimes including felony murder, Dupree raised several issues before the court on appeal.

ISSUES: (1) Whether the convictions are reversible under the speedy trial statute, (2) Whether the district court properly overruled a Batson challenge, (3) Whether the issue of the voluntariness of statements was preserved for appeal, (4) Whether photographs admitted at trial were unduly prejudicial

HELD: The general rule for speedy trial calculations is that an attorney cannot continue a trial over the defendant's objection. In this case, Dupree claimed that he was not consulted about continuances and never acquiesced to any delay. However, under the court's prior holding in State v. Brownlee and K.S.A. 2014 Supp. 22-3402(g), even if the delays are now attributed to the State Dupree is not entitled to the reversal of his convictions. This is true even though subsection (g) was not in effect at the time Dupree was arraigned, because subsection (g) does not create a vested right. Although it was undisputed that the State exercised a preemptory challenge on the basis of race, Dupree failed to prove error in the district court's finding of a race-neutral reason for the preemptive strikes and failed to show purposeful discrimination. Dupree challenged the admissibility of a statement that he made over the telephone, but because he did not lodge a timely objection to the introduction of that evidence the issue was not preserved for appeal. The photographs admitted at trial – taken in the emergency room, at autopsy, and at the crime scene – were both material and probative, and were thus appropriately admitted at trial over Dupree's objection.

STATUTES: K.S.A. 2014 Supp. 22-3208(7), -3402(g), 60-261; K.S.A. 22-3402, 60-401(b), -404, -2105

Kansas Supreme Court – Criminal

Statutory Interpretation; Words and Phrases
State v. Holsted
Wyandotte District Court – Reversed
No. 112,846 – April 8, 2016

FACTS: The facts of this case are undisputed. During a consensual search of Holsted's residence, officers found 29 small marijuana cuttings with no visible roots in a hydroponic growing system, one large marijuana plant, and other equipment consistent with a marijuana growing operation. When the case was tried to the bench on stipulated facts, the district court ruled that Holsted intended to cultivate the cuttings from the main plant. After he was convicted, Holsted appealed.

ISSUE: Are marijuana clippings with no root system sitting in a growing medium "marijuana plants" as contemplated By K.S.A. 2015 Supp. 21-5701(c)

HELD: The dictionary definition of "plant" includes "stem, leaves, roots, and sometimes flowers." The clippings found at Holsted's residence were potential plants, but without roots they could not sustain life by absorbing water or nutrients. In order to be a plant there must be a visible root system. Holsted's intent does not change what constitutes a plant. Since the clippings cannot be defined as "plants", Holsted could not be convicted of any criminal charge involving marijuana cultivation.

STATUTES: 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii), (B)(vii); K.S.A. 2015 Supp. 21-5701(c), -5705(c), -5705(d)(7)(A), -5706, 79-5201(d)