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May 16, 2014, Appellate Court Digests
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Kansas Supreme Court – Civil





NO. 102,630 – MAY 16, 2014


FACTS: Prairie Land Electric Cooperative Inc. (Prairie Land) purchases wholesale electricity from multiple suppliers and distributes that electricity to retail consumers within a certified service area in northwest and north central Kansas. The Kansas Corporation Commission establishes the boundaries of Prairie Land's certified service area. Within its certified service area, Prairie Land's distribution system consists of all the "facilities, transmission lines, distribution lines and substation equipment as owned and operated by Prairie Land." The dispute in this case arises from Prairie Land's decision to enter into temporally overlapping, long-term all-requirements contracts with two different wholesale electricity suppliers, Kansas Electric Power Coop. (KEPCo), and Sunflower Electric Power Corp. and which supplier would provide the electricity for one of Prairie Land's new retail customers. Prairie Land filed a petition for declaratory judgment asking the court to construe and declare the rights, status and legal relations of the parties under both contracts. Trial court ruled that Sunflower has the contractual right and obligation to serve the new pumping station delivery point. The Court of Appeals reversed the trial court's ruling and remanded with directions to enter judgment in favor of KEPCo after concluding KEPCo had the contractual right to supply electricity to Prairie Land for the new delivery point based on the unambiguous language of the KEPCo Contract.


ISSUES: (1) Contracts and (2) electric companies


HELD: After careful consideration of seemingly irreconcilable contract provisions, Court concluded the only way to reasonably interpret and give legal effect to both contracts is to interpret the KEPCo Contract in light of, and as limited by, Prairie Land's preexisting obligations under the Sunflower Contract. Thus, Court concluded that Prairie Land agreed in the KEPCo Contract to purchase its needs from KEPCo only if one of the two exceptions recognized in the Sunflower Contract applied—i.e., if Sunflower lacked capacity to meet all of Prairie Land's requirements; or (2) if Prairie Land had preexisting obligations to purchase some of its energy requirements from other suppliers at the time it entered into the Sunflower Contract. Court held the first exception did not apply here because Sunflower had the capacity to meet Prairie's Land's requirements for the new Jayhawk pumping station. Similarly, the second exception does not apply here because Prairie Land did not have a preexisting obligation to purchase energy requirements for the new Jayhawk pumping station from a supplier other than Sunflower at the time it entered into the Sunflower Contract. Court interpreted the contracts at issue to require that Prairie Land purchase its energy needs for the Jayhawk pumping station from Sunflower rather than KEPCo.


STATUTES: K.S.A. 20-3018; and K.S.A. 60-1701, -1713, -2101

Kansas Supreme Court – Criminal




NO. 106,508 – MAY 16, 2014


FACTS: Kenney charged with multiple felonies related to a home invasion. Defense counsel twice sought without success to withdraw, citing conflict and difficult communication with Kenney. Kenney entered no contest plea to two felony counts. Plea agreement as explained by defense counsel and district court incorrectly informed Kenny that he reserved the right to appeal pretrial motions. Prior to sentencing, Kenney filed pro se motion to withdraw plea because he had not realized that K.S.A. 22-3602(a) would preclude appeal of rulings on defense motions to withdraw. District court denied that request. Kenney appealed. Court of Appeals affirmed in unpublished opinion. Kenney’s petition for review granted.


ISSUES: Motion to withdraw plea


HELD: A criminal defendant’s misinformation from counsel about the applicable law during plea negotiations – particularly when reinforced later by the written plea agreement and by counsel’s and the district judge’s incorrect statements during the defendant’s plea hearing – easily constitutes good cause to withdraw a no contest plea under K.S.A. 22-3602(a). Reversed and remanded to district court for Kenny to be permitted to withdraw his no contest pleas, and for appointment of substitute counsel before prosecution continues.


STATUTES: K.S.A. 22-3210(d), -3602(a); and K.S.A. 60-261




NO. 105,995 – MAY 16, 2014


FACTS: A jury convicted King of four charges: rape by penile penetration, rape by digital penetration, aggravated criminal sodomy, and aggravated indecent liberties with a minor (R.B.). The district court judge sentenced King to four concurrent hard 25 life sentences under Jessica's Law. The Court addressed four issues on this direct appeal: (1) admission of evidence on a prior charge of sexual abuse (J.B.) for which King was acquitted; (2) failure to provide a unanimity instruction; (3) exclusion of evidence of the victim's prior sexual history; and (4) denial of a sentencing departure motion.


ISSUES: (1) Admission of defendant's prior acquittal and victim's prior sexual history, (2) unanimity, and (3) sentencing departure


HELD: Court reversed King's conviction based on the lack of a unanimity instruction. Court held that it could not ignore or minimize the prejudice to defendant King from the court's failure to instruct on unanimity and the State's failure to elect which of the multiple acts underlying each of King's charges was to be relied upon by the jury. Court stated that it had no confidence in the reliability of the guilty verdicts. Court also stated that should this case be retried, and should the State again seek to introduce evidence of J.B.'s past allegations against King, the district judge will have to analyze whether the prosecution in which King was acquitted had at its heart the same issue or issues to be entrusted to the second jury in this case. If so, collateral estoppel should prevent introduction of the evidence. If not, collateral estoppel will pose no obstacle to introduction of the evidence under K.S.A. 60-455(d). Court held that it did not need to decide whether the district judge's exclusion of the rape shield evidence in the first trial was an abuse of discretion. Court noted that, on remand, it is possible that more information about the nature of the allegations and why they did not lead to a prosecution may be available. The district judge's expressed concern about vagueness may evaporate. Assuming that issue is put to rest, R.B.'s earlier allegations may meet the relevance threshold of the statute to the extent R.B's therapist again opines that R.B.'s dissociation may be related to a traumatic event or the State again argues that R.B. had no way of knowing what she did about sex absent King's abuse. Court held the trial court erred at sentencing. Court stated that before his conviction in this case, King had no prior criminal history. Therefore, Court held the district judge was not "precluded" from considering a departure. Court did not reach King's issues of a denial of defense challenges to venire members for cause, cumulative error, or constitutionality of Jessica's Law because of the reversal.


STATUTES: K.S.A. 21-3525, -4643; K.S.A. 22-3414; and K.S.A. 60-261, -455(d)

Kansas Court of Appeals – Criminal



NO. 110,026 – MAY 16, 2014


FACTS: Dority convicted of domestic battery and endangering a child. Bench trial included mother’s recantation of her statements to police officers when she reported the incident and Dority was arrested. District court judge found officers’ testimony more persuasive and supported by the physical evidence, and commented that based on his experience it is common for victims of domestic violence to recant their initial police reports. Dority appealed claiming (1) State failed to prove alternative means of domestic battery, (2) the conflicting and inconsistent testimony was insufficient to support the convictions, and (3) he was denied a fair trial because district judge improperly relied on personal knowledge about domestic violence victims instead of relying on evidence provided at trial.


ISSUES: (1) Alternative means, (2) sufficiency of the evidence, and (3) judicial use of personal knowledge


HELD: Jury unanimity is not a concern in a bench trial. Dority’s alternative means argument is inapplicable.


Viewed in light most favorable to the State, there was sufficient evidence to support Dority’s convictions.


Unpublished Kansas opinions are identified and discussed. A trial judge, as factfinder in a bench trial, is not allowed to use his or her special knowledge of a particular subject to decide an issue without hearing evidence to support the judge’s findings. However, a trial judge is allowed to use his or her common knowledge and experience to determine the credibility of a witness and assess the weight of a witness’ testimony. Here, trial judge used his common knowledge and experience to explain why he found police officers’ testimony to be more credible than victim’s testimony, and there was additional evidence to support the verdicts beyond a reasonable doubt.


STATUTES: K.S.A. 2013 Supp. 60-455, -455(d); K.S.A. 21-3525(b), -4643; K.S.A. 22-3414(3); and K.S.A. 60-261




NO. 108,902 – MAY 16, 2014


FACTS: Herman convicted of DUI in violation of K.S.A. 2010 Supp. 8-1567. State appealed on question reserved from district court’s determination that Herman’s 2004 Missouri conviction for driving while intoxicated could not be counted as a prior conviction under Kansas law in determining penalty for the current conviction. Herman cross-appealed claiming there was insufficient evidence of probable cause to support denial of her motion to suppress Intoxilyzer breath test result, and claiming district court erred in the current sentence/penalty determination by refusing to apply "look-back” provisions of K.S.A. 2011 Supp. 8-1567(j)(3) to her case and thus improperly included a 1991 diversion for DUI.


ISSUES: (1) Jurisdiction – state’s appeal under K.S.A. 2013 Supp. 22-3602(b)(3), (2) jurisdiction – criminal defendant’s cross-appeal, (3) motion to suppress, and (4) retroactive application of K.S.A. 2011 Supp. 8-1567(j)(3)


HELD: Statutory provisions and rules relating to appeals by State based on a question reserved under K.S.A. 2013 Supp. 22-3602(b)(3) and cross-appeals by a defendant therefrom are stated and applied. State’s appeal is dismissed. Language in K.S.A. 2010 Supp. 8-1567(o)(2) relating to what constitutes a prior conviction in a DUI prosecution was abrogated, deleted, and amended by the 2012 Kansas Legislature. An opinion by this court at this time on legal effect of the repealed language would unlikely govern any existing case, and is not an issue important to the correct and uniform administration of criminal law in Kansas.


Provisions of K.S.A. 22-3606 authorize a criminal defendant facing an appeal by the State to file a cross-appeal as allowed under K.S.A. 2013 Supp. 60-2103(h). Herman’s cross-appeal was timely filed and appellate court has jurisdiction.


Under facts of case, there was substantial competent evidence to establish probable cause to arrest Herman under K.S.A. 2010 Supp. 8-1567. District court did not err in refusing to suppress results form Herman’s evidentiary breath test.


Consistent with State v. Reese, 48 Kan.App.2d 87 (2012), rev. granted (argued and awaiting decision),K.S.A. 2011 Supp. 8-1567(j)(3) cannot be applied retroactively and applies only to DUI violations committed on after the 2011 effect date of the statutory amendment. District court correctly counted Herman’s 1991 DUI diversion agreement as a prior conviction in determining Herman’s sentence.


STATUTES: K.S.A. 2013 Supp. 8-1567(i)(2), -1567(i)(3); K.S.A. 2013 Supp. 22-3602(a), -3602(b)(3), -3602(c), -3608(c); K.S.A. 2013 Supp. 60-2103(h); K.S.A. 2012 Supp. 8-1567(i)(3); K.S.A. 2011 Supp. 8-1567(j)(2), -1567(j)(3); K.S.A. 2010 Supp. 8-1567, -1567(a)(1), -1567(a)(3), -1567(d), -1567(e), -1567(f), -1567(g), -1567(o), -1567(o)(1), -1567(o)(2), -1567(o)(3); K.S.A. 8-1567; K.S.A. 22-3504, -3601 et seq., -3606; and K.S.A. 60-2103, -2103(b), -2103(h)