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May 6, 2016, Appellate Court Digests
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Kansas Court of Appeals – Criminal

Crimes and punishments; Evidence; Jury Instructions
State v. Allen
Seward District Court – Affirmed
No. 112,780 – May 6, 2016

FACTS: Following traffic stop and discovery of drug evidence in car, Allen was convicted of offenses including possession of methamphetamine. Allen appealed, arguing evidence of residue of methamphetamine on scale and inside a pipe was insufficient to prove he possessed the drug. He also argued the reasonable doubt instruction, PIK Crim. 4th 51.010, given to the jury erroneously precluded the possibility of jury nullification.

ISSUES: (1) Sufficiency of the Evidence, (2) Burden of Proof Instruction

HELD: Sufficient evidence supported Allen’s conviction for possession of methamphetamine. Residue visible to naked eye existed on scale and in pipe residue, and these items were found in Allen’s vehicle.

Criminal defendants are not entitled to have jury instructed on its inherent power of nullification. Unlike "must," "shall," and "will," the word "should" does not express a mandatory, unyielding duty or obligation; instead, it merely denotes the proper course of action and encourages following the advised path. Accordingly, the reasonable doubt instruction in PIK Crim. 4th 51.010, which states that if the jury has no reasonable doubt as to the truth of each the claims asserted by the State it "should find the defendant guilty," does not usurp jury's inherent power of nullification. Unpublished Court of Appeals’ cases in accord are cited.

STATUTE: K.S.A. 2015 Supp. 21-5202(i), -5701(q), -5706(a)

Kansas Court of Appeals – Criminal

Crimes and punishment; Divorce; Protection From Abuse Act
State v. Hendricks
Johnson District Court – Reversed and remanded
No. 113,597 – May 6, 2016

FACTS: Hendricks’ divorce decree entered in 2006. Ongoing child-custody disputes resulted in 2013 order that Hendricks have no contact with ex-wife or the two minor children. Hendricks was arrested when ex-wife reported two phone messages he left in 2014 about picking up the kids. State charged and convicted him of violating a protection order, K.S.A. 2013 Supp. 21-5924, entered under K.S.A. 2013 Supp. 23-2707. Hendricks appealed, arguing in part that K.S.A. 2013 Supp. 23-2707 authorizes temporary orders only before the final judgment, not several years after the divorce decree.

ISSUE: Violation of protection orders and K.S.A. 2013 Supp. 23-2707

HELD: Entry of decree of divorce constitutes the final judgment in that case, notwithstanding district court’s retained jurisdiction over child-custody matters. A no-contact order entered after the divorce decree cannot serve as basis for a criminal charge under K.S.A. 2013 Supp. 21-5924 because the order was not entered under authority of K.S.A. 2013 Supp. 23-2707, or under facts of this case, any other statute listed in K.S.A. 2013 Supp. 21-5924. District court had authority to enforce the 2013 no-contact order though contempt powers or otherwise, but Hendricks’ violation of the order was not a crime under K.S.A. 2013 Supp. 21-5924. Reversed and remanded to set aside Hendricks’ conviction and to dismiss the criminal complaint.

STATUTES: K.S.A. 2013 Sup. 21-5103(a), -5924, 23-2707, -2707(a), -3001, -3005, -3218, -3219, -3221, 60-254(b), -260; K.S.A. 60-3105, -3106, -3107, -31a05, -31a06