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July 15, 2016, Appellate Court Digests
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Kansas Supreme Court – Attorney Discipline

Original Proceeding in Discipline
In the Matter of Lyle Louis Odo
One-year suspension
No. 114,863 – July 15, 2016

FACTS: Odo is a Kansas-licensed attorney with a primary place of business in Missouri. In November 2015, a hearing panel of the Kansas Board for Discipline of Attorneys determined that Odo violated Kansas Rules of Professional Conduct 1.7(a)(2) (conflict of interest), 1.8(a) (conflict of interest), 1.8(e) (providing financial assistance to client), 1.9(a) (duties to former clients), 1.15(d) (preserving client funds), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The disciplinary investigation arose after Odo represented two individuals who had been injured in the same car accident. When one of the clients experienced financial difficulties, Odo steered him to a lending operation of which Odo was President. Although Odo is not technically the owner, he derives benefit from profits earned by the company. Odo did not advise his client that he had the right to seek independent counsel on the loan terms, and the lines were blurred between Odo's representation of his client in the personal injury case and Odo's representation of his company. Odo's license to practice law in Missouri has been indefinitely suspended.

Hearing Panel: The hearing panel determined that Odo's actions violated the KRPC because his concurrent conflicts between client and business kept him from adequately representing either client. After weighing the aggravating and mitigating factors, the panel recommended that Odo be indefinitely suspended.

HELD: The court accepted the recommendation of the disciplinary administrator that Odo be suspended for one year. He must appear for a reinstatement hearing before being allowed to practice law in Kansas.

Kansas Supreme Court – Criminal

Appeals; Constitutional Law; Crimes and Punishment; Criminal Law; Jurisdiction; Statutes
State v. Dunn
Labette District District Court – Affirmed
Court of Appeals – Affirmed
No. 106,586 – July 15, 2016

FACTS: Dunn appealed his convictions for forgery and stalking. He argued for first time on appeal the district court lacked subject matter jurisdiction because the charging document failed to allege he intended to defraud business when he passed the check.  He also claimed insufficient evidence supported the stalking conviction. In unpublished opinion, court of appeals affirmed both convictions. Dunn’s petition for review was granted. Court requested additional briefing and arguments regarding history of Kansas rule on charging documents conferring subject matter jurisdiction, impact of United States v. Cotton, 535 U.S. 625 (2002), remedy for deficient charging document, and standard of appellate review to be applied.

ISSUES: (1) Subject matter jurisdiction over complaint’s forgery count, (2) sufficiency of evidence of stalking

HELD: Court examines history of Kansas cases and realigns Kansas approach to charging document sufficiency.  Kansas Constitution, rather than charging documents, bestow or confer subject matter jurisdiction on state courts to adjudicate criminal cases.  Contrary holding in State v. Minor, 197 Kan. 296 (1966), is overruled. Kansas charging documents need only show a case has been filed in the correct court having territorial jurisdiction over the crime alleged, and allege facts, if proved beyond a reasonable doubt, that would constitute a Kansas crime committed by the defendant. On appeal, a challenge to the charging document is to be treated no differently than other defense allegations of error. Contrary holdings in State v. Hall, 246 Kan. 728 (1990), and subsequent cases are overruled. Challenges to sufficiency of Kansas charging documents are subject to evaluation for timeliness under K.S.A. 22-3808(3), and like any alleged error, should be preserved in district court for appeal, and if not, an exception to the usual preservation rule must be demonstrated. On record in this case, forgery count in the charging document was statutorily insufficient, but error was harmless under K.S.A. 2015 Supp. 60-261 and 60-2105. Dunn’s claim that charging document also failed to protect constitutional rights to due process ad notice does not compel reversal of his forgery conviction.

Under facts of case, sufficient evidence supported Dunn’s stalking conviction.

DISSENT (Johnson, J.): Dissents in part from majority’s holding that district court (judicial branch) has jurisdiction to convict a person of a crime when prosecutor (executive branch) failed to charge that person with any crime under Kansas law. Would not perform prosecutor’s enforcement-of-laws function under guise of judicial determination of harmlessness.

STATUTES: K.S.A. 2015 Supp. 60-261, -2105; K.S.A. 12-4104, 20-301, 21-3710, -3710(a)(1), -3710(a)(2), 22-2103, -2202, -2301, -2301(1), -2301(2), -2303(1), -2601, -3011, -3201, -3201(a), -3201(b), -3201(e), -3201(f), -3208, -3208(3), -3208(4), -3208(6), -3502, -3503; K.S.A. 2008 Supp. 21-3438(a)(3)

Kansas Court of Appeals – Criminal

Crimes and Punishment; Criminal Law; Evidence
State v. Herndon
Neosho District District Court – Affirmed in part, reversed in part, remanded
No. 112,479 – July 15, 2016

FACTS: Herndon convicted of aggravated endangering a child, discharging a firearm at an occupied vehicle, discharging a firearm at an unoccupied dwelling, and aggravated assault. On appeal he claimed: (1) insufficient evidence supported conviction for aggravated endangerment because he did not know there was a child passenger when he shot at the vehicle; (2) district court erred in denying motion to suppress evidence discovered in search of storage unit other than the unit Herndon had identified as his; (3) prosecutor erroneously referred to an uncharged crime by commenting on stolen statutes found in the storage unit; (4) cumulative error denied him a fair trial; and (5) district court unconstitutionally used Herndon’s prior convictions in sentencing.

ISSUES: (1) aggravated child endangerment, (2) K.S.A. 60-455 evidence, (3) prosecutorial misconduct, (4) cumulative error, (5) constitutionality of sentence

HELD: No evidence that Herndon was aware of child’s presence in the pickup truck at the time of Herndon’s shooting.  In context of aggravated child endangerment statute, K.S.A. 2015 Supp. 21-5601(b)(1), and definition of recklessness in K.S.A. 2015 Supp. 21-5202(j), State failed to establish that Herndon consciously disregarded a substantial risk that his conduct would place child in peril.  Aggravated endangerment conviction is set aside.  Remanded to district court to vacate Herndon’s sentence for this conviction. 

Even if Herndon had properly preserved his suppression issue for appeal, no relief would have been warranted.  Herndon had no standing to challenge the search where he claimed no possessory interest in the storage unit the police searched.

Prosecutor’s reference during opening statement to the stolen statutes was rendered harmless when that evidence was admitted without objection for jury’s consideration.

Other than propriety of Herndon’s aggravated endangerment conviction, no other trial errors found for cumulative error claim.

Claim of constitutional error in criminal history being used in sentencing is defeated by State v. Ivory, 273 Kan. 44 (2002).

STATUTES: K.S.A. 2015 Supp. 21-5202(j), -5601(b)(1), 60-455(e); K.S.A. 60-404, -455, -1507

Kansas Court of Appeals – Civil

Partnership dissolution; Statutory interpretation
In re PB&R
Sedgwick District District Court – Affirmed
No. 112,580 – July 15, 2016

FACTS: Powell, Brewer, and Reddick were law partners. When two of the three wanted to leave the partnership, they could not agree on how to wind up the business. Powell filed a petition for judicial supervision of dissolution. As part of the process, the district court asked all three to propose their own wind-up plan. The district court chose Reddick's proposal, which was supported by Brewer. Powell disagreed with the terms of the proposal and appealed.

ISSUE: Whether the district court erred by choosing Reddick's partnership wind-up plan

HELD: When a court supervises the dissolution of a partnership, it acts as a court of equity. As such, the district court has the discretion to determine what is fair and equitable under the circumstances, which allows a great deal of latitude. The district court was required to follow the partnership agreement and, in the event that agreement was silent on a particular issue, to apply the Kansas Revised Uniform Partnership Act (KRUPA). The district court correctly determined that the partnership agreement did not cover dissolution or wind-up. In that absence, the KRUPA governs. Because the firm's practice was to use firm money to advance client expenses, despite a partnership agreement term to the contrary, Powell cannot require adherence to the agreement's terms only after dissolution. Because Powell added to the balance of the bank loan without consulting the other partners, the district court did not abuse its discretion by requiring Powell to personally pay the loan balance. Although there may be a relevant portion of the KRUPA, the district court did not abuse its discretion by allowing the partners to divide physical assets at dissolution.

STATUTES: K.S.A. 2015 Supp. 60-259(a); K.S.A. 56a-101(f), -103(a), -104(a), -402, -802(a), -803(a), -807(a), -807(b)

Kansas Supreme Court – Criminal

Crimes and punishment; Criminal law; Statutes
State v. Pribble
Sedgwick District District Court – Affirmed in part, reversed in part, remanded
Court of Appeals – Affirmed in part, reversed in part
No. 108,915 – July 15, 2016

FACTS: Pribble convicted of numerous drug offenses arising from officers’ discovery and seizure of evidence including drugs, including over 800 grams of marijuana and more than 14 grams of methamphetamine, not bearing drug tax stamps. On appeal Pribble claimed:  (1) charges for possession of marijuana with no drug tax stamp, and possession of methamphetamine with no drug tax stamp were multiplicitous; (2) prosecutor in closing argument misstated the law, impermissibly commented on witnesses’ credibility, and shifted burden of proof to the defense; and (3) use of his prior convictions to enhance sentence under sentencing guidelines violated Apprendi. Court of appeals affirmed in unpublished opinion.  Pribble’s petition for review granted.

ISSUES: (1) Multiplicity—drug taxation offenses, (2) prosecutorial misconduct, (3) constitutionality of sentence

HELD: K.S.A. 79-5208 and related statutes are discussed. Under facts of this case, Pribble’s possession of both marijuana and methamphetamine, at the same time and location, without appropriate drug tax stamps affixed, constituted a single crime that should not have been charged in two counts.  One count is reversed and matter is remanded for resentencing.

Prosecutor misstated the law with hypothetical implying possession does not require intent, and erroneously stated his personal belief of witnesses’ credibility, but no reversal required under facts of case.  Prosecutor’s comment on Pribble’s failure to call alibi witnesses who could have corroborated defense theory of case did not improperly shift burden of proof or infringe on Pribble’s right to remain silent.

Claim of constitutional error in judicial finding of criminal history being used in sentencing is defeated by State v. Ivory, 273 Kan. 44 (2002).

CONCURRENCE and DISSENT (Rosen, J.): Agrees that prosecutor’s comments during closing argument did not constitute reversible error, and that sentence did not violate Apprendi. Disagrees with majority’s construction of K.S.A. 79-5208, and majority’s holding that Pribble’s tax stamp convictions are multiplicitous.

STATUTES: K.S.A. 2010 Supp. 21-36a01(a), 79-5201, -5201(c), -5205(a); K.S.A. 65-4107(d), 79-5201 et seq., -5202, -5202(a)(1)-(5), -5204(a), -5204(b), -5204(c), -5204(d), -5208