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June 24, 2016, Appellate Court Digests
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Kansas Supreme Court – Criminal

Jury instructions; Sentencing; Sufficiency of the evidence
State v. Potts
Wyandotte District Court – Convictions affirmed, sentences vacated, and case remanded with directions
No. 113,302 – June 24, 2016

FACTS: While driving a vehicle that he had stolen earlier in the day, 15-year old Potts drove up behind a car. His three passengers fired weapons into the vehicle, killing one person. Potts was charged with felony murder, criminal discharge of a firearm at an occupied vehicle, and burglary. Potts admitted to police that he stole the car, but claimed that he had no idea the shooting was going to take place. Potts was certified to stand trial as an adult and convicted as charged.

ISSUES: (1) Whether a defendant may be convicted of felony murder and criminal discharge of a firearm when the defendant did not fire any shots, (2) Whether a conviction for burglary will stand when the vehicle is stolen rather than property from inside the vehicle, (3) Whether the court may review the introduction of statements in the absence of a contemporary objection, (4) Whether the statutory definition of "intentional conduct" should have accompanied the aiding and abetting jury instruction, (5) Whether the district court's certification of Potts as an adult violated Apprendi, (6) Whether an error in the sentencing journal entry could be fixed through a journal entry nunc pro tunc

HELD: If someone dies during the course of an inherently dangerous felony, all participants are equally guilty of the felony murder, regardless of who fired the fatal shot. Further, there was direct and circumstantial evidence that Potts intended to aid his companions with the shooting. Conviction for burglary required proving that Potts illegally entered the vehicle with the intent to commit a theft therein. The word "therein" includes completing the theft of the car itself. An appellate court will not review the admission of evidence that is not met with a contemporaneous objection. Further, the statements objected to by Potts included exculpatory evidence that was used by defense counsel. Since Potts did not request that the statutory definition of "intentional conduct" accompany the aiding and abetting jury instruction, its absence was evaluated by a clearly erroneous standard. In this case, the jury instruction, as given, clearly conveyed to the jury that Potts must have intentionally aided in the commission of the crime. It was therefore not clearly erroneous. Apprendi's requirement of a jury determination is not required for a juvenile to be tried as an adult. The journal entry of sentencing reflected the sentence announced by the district court; this sentence included lifetime post-release supervision for all of Potts' convictions. Potts asked the appellate court to order a journal entry nunc pro tunc to reflect that his criminal discharge of a firearm and burglary convictions only carry 36 months of post-release supervision. The State concedes that the sentences are wrong. But because the journal entry accurately reflects the sentence announced from the bench, a journal entry nunc pro tunc is inappropriate. Rather, the case must be remanded for resentencing on this issue.

STATUTES: K.S.A. 2012 Supp. 21-5202(h), -5210(a), -5402(a)(2), -5402(c)(1)(O), -5801(a)(1), -5807(a)(3), -5807(c)(1)(C), -6308(a)(1)(B), -6308(b)(1)(B), 22-3717(b)(2), -3717(d)(1)(A), 38-2347; K.S.A. 22-3413(3), -3504(2), 60-1507

Kansas Court of Appeals – Civil

Words and phrases; Workers compensation
Graber v. Dillon Companies
Workers Compensation Court – Reversed and remanded with directions
No. 113,412 – June 24, 2016

FACTS: Graber worked for Dillon Companies. After undergoing a kidney transplant, Graber developed diabetes and high blood pressure. Graber managed his conditions with medication and had never had any issues or complications. In 2011, Graber attended a mandatory safety meeting which was held outside of his normal work hours. During the day-long meeting, he ate the food that was provided by the company. After the meeting ended, Graber suffered an episode and fell down some stairs. The fall caused a traumatic brain injury and a fractured neck. The injuries left Graber unable to work, and his employment was terminated. During the evaluation process, the experts were split as to whether Graber's injuries were solely caused by his fall or whether there was a contributing pre-existing condition. The administrative law judge (ALJ) found that Graber's fall was the prevailing cause. The Board reversed, finding that Graber's injury was due to an "idiopathic", unexplained fall. Since unexplained accidents fall within the idiopathic cause exclusion of the amendments to the Kansas Workers Compensation Act (KWCA), the Board found that Graber's injuries were noncompensable. Graber appealed.

ISSUE: The definition of "idiopathic" as it is used in K.S.A. 2015 Supp. 44-508(f)(3)(A)(iv)

HELD: The 2011 amendments to the KWCA exclude from coverage accidents or injuries which arise out of a neutral risk with no particular employment or personal character and those that arise directly or indirectly from an idiopathic cause. The statute does not define "idiopathic". The overwhelming authority shows that "idiopathic", within the context of the KWCA, is defined as "personal or innate to the claimant." In this case, the Board incorrectly defined the term and erred by denying Graber compensation. However, there remains an outstanding question of fact as to whether Graber's accident arose out of and in the course of his employment. The matter must be remanded for further findings of fact.

STATUTE: K.S.A. 2015 Supp. 44-501b, -508(3)(A), -508(f)(2), -508(f)(3)(A)(ii), -508(f)(3)(A)(iv), -556(a), 77-621(c)(4)

Kansas Court of Appeals – Civil

Contract interpretation; Insurance; Summary Judgment
Arnold v. Foremost Insurance Company
Sedgwick District Court – Affirmed
No. 114,210 – June 24, 2016

FACTS: It is undisputed that Arnold applied for and received an insurance policy covering a vacant home that he owned. A copy of the policy was sent to the address Arnold provided on the application. The policy included a provision notifying Arnold that notice of cancellation would be mailed to the address shown in the policy. Arnold's policy was cancelled in December 2012. Notice of cancellation and a premium refund check were sent to Arnold at the mailing address that Arnold had previously provided to Foremost. Arnold claimed he never received notice of the cancellation, and it is undisputed that the check has never been cashed. In May 2013, the insured house was damaged by hail. When Arnold tried to make a claim to repair the damage, he learned of the cancellation. Arnold sued Foremost for breach of contract, claiming not only that Foremost gave improper notice of the cancellation but also that Foremost had a duty to ask Arnold why he did not cash the refund check. The district court granted Foremost's motion for summary judgment, holding that the company had no duty to provide actual notice of the cancellation and had no duty to follow up on why the check was never presented for payment. Arnold appealed.

ISSUES: (1) Does Kansas law require actual notice of the cancellation of an insurance policy, (2) Does an insurance company have a duty to inquire as to why a check has not been presented for payment

HELD: Clear statutory language and Kansas Supreme Court precedent establish that actual receipt of a cancellation notice is not required for an automobile policy. Although there is no specific statute which broadens this policy to include property casualty insurance, there is no meaningful difference between motor vehicle liability insurance and property casualty insurance. Moreover, the policy language used by Foremost was clear and unambiguous and Arnold cannot show that this contract is void as against public policy. There is no policy language that required Foremost to follow up with Arnold after the refund check was issued, and there is nothing in public policy or the common law that would create the duty to make such an inquiry.

STATUTES: K.S.A. 2015 Supp. 60-256(c)(2); K.S.A. 40-435, -1015, -3118(b)

Kansas Court of Appeals – Civil

Mandamus; Workers compensation
Cincinnati Insurance Co v. Karns
Shawnee District Court – Affirmed
No. 114,605 – June 24, 2016

FACTS: Paul Young sustained an on-the-job injury. While his workers compensation claim was pending, Cincinnati Insurance Company (Cincinnati) made temporary total disability payments to Young. After Young's final award was determined, Cincinnati realized that it had overpaid Young by almost $30,000. After realizing its mistake, Cincinnati asked the Director of Workers Compensation (Director) to order the Workers Compensation Fund to reimburse Cincinnati in the amount of the overpayment. The Director denied the request, finding that there was nothing in the workers compensation statutes that authorized the repayment. Cincinnati sought judicial review of the decision, but the district court refused to enter a ruling after finding that it lacked subject matter jurisdiction. Cincinnati appealed that dismissal to the court of appeals.

ISSUE: Did the district court, and by extension the appellate court, have subject matter jurisdiction to consider an appeal from the Director's decision

HELD: The Kansas Workers Compensation Act is comprehensive and has its own provisions that cover appeals. Consequently, the Kansas Judicial Review Act does not provide for the right to appeal this decision from the Director. Since there is no right of appeal in the district court, Cincinnati's only relief lies through a writ of mandamus.

STATUTE: K.S.A. 2015 Supp. 44-534a(b),-536(b), -549, -551(1)(1), -555c(a), -556(a), -556(d), -556(e), 77-603, -603(a)

Kansas Court of Appeals – Criminal

Jurisdiction; Sentencing; Statutory Interpretation
State v. Buell
Shawnee District Court – Affirmed
No. 113,881 – June 24, 2016

FACTS: Buell pled guilty to robbery and attempted kidnapping. Buell's criminal history included two 2002 Florida juvenile adjudications, one labeled as burglary of a dwelling and one labeled as burglary of a dwelling while armed. At sentencing, Buell objected to the classification of the adjudication for burglary of a dwelling while armed as a person felony, claiming there was no comparable Kansas offense because of the differences in the intent elements of the Florida and Kansas burglary statutes. The district court overruled the objection and sentenced Buell with a criminal history score of A. Buell appealed.

ISSUE: Whether the district court improperly made findings of fact when categorizing a Florida burglary adjudication as a person felony for criminal history purposes

HELD: A legal challenge to the classification of a prior burglary adjudication can be raised for the first time on appeal. Even if a defendant waives a jury trial, the defendant maintains the right to require each fact used to enhance a sentence to be proven to a jury beyond a reasonable doubt. When scoring criminal history for sentencing purposes, if there is no comparable Kansas crime the out-of-state adjudication must be scored as a nonperson offense. It is undisputed that Buell's prior adjudications were felonies. The only question is whether they were person or nonperson offenses. Under the facts of this case, the district court properly determined that the Florida and Kansas statutes were similar enough to allow for classification of Buell's prior adjudications as person felonies.

STATUTES: K.S.A. 2015 Supp. 21-6803(d), -6804(a), -6810, -6811, -6811(d), -6811(e); K.S.A. 2011 Supp. 21-5807, -5807(a)

Kansas Court of Appeals – Criminal

Sentencing; Statutory construction
State v. Moore
Sedgwick District Court – Affirmed
No. 113,545 – June 24, 2016

FACTS: Moore pled guilty to aggravated indecent liberties with a child. At sentencing, the district court classified Moore's 1984 Oregon conviction for burglary of a dwelling as a person offense and he was sentenced with the criminal history score of "A". In 2014, Moore moved to correct an illegal sentence, claiming the classification was incorrect. The district court denied the motion, finding that the Kansas Supreme Court's decision in State v. Murdock did not apply. Moore appealed.

ISSUE: Whether Moore's Oregon conviction for burglary of a dwelling should have been classified as a person offense

HELD: An appellate court may correct an illegal sentence at any time. When assigning a criminal history score to an out-of-state conviction, the court first determines whether the conviction was a misdemeanor or a felony based on the law of the state where the defendant was convicted. Next, the court determines whether the prior conviction is a person or nonperson offense by comparing the prior-conviction statute to the comparable offense in effect in Kansas on the date the current crime was committed. If there is no comparable Kansas crime, the prior conviction must be classified as a nonperson crime. When evaluating a burglary conviction, if the prior burglary conviction involved burglary of a dwelling, it is classified as a person crime. In Moore's case, it was undisputed that the prior crime was a felony in Oregon. And even though the intent requirement of the Oregon statute differed slightly from the relevant Kansas statute, the prior conviction was still properly categorized as a person felony.

STATUTES: K.S.A. 2015 Supp. 21-5111(k), -5807(c), -6804(a), -6805(a), -6809, -6810, -6811(d), -6811(e); K.S.A. 2004 Supp. 21-4704(j); K.S.A. 22-3504