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September 9, 2016, Appellate Court Digests
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Kansas Supreme Court – Civil

Conversion; Damages; Statute of Limitations
Armstrong v. Bromley Quarry & Asphalt, Inc.
District Court – Affirmed in part, reversed in part
Court of Appeals – Affirmed in part, reversed in part
No. 109,864 – September 9, 2016

FACTS: Bromley Quarry operated an underground limestone mine which abutted Armstrong's property. Although there was one in the past, Bromley Quarry did not have an active lease agreement for Armstrong's property. In part because of prior litigation, Bromley Quarry prepared annual maps of its mining activity which showed that all mining was being done on its own property. But a 2010 map prepared by an outside firm showed that rock was being mined from the Armstrong property. Bromley Quarry's sole shareholder concealed the trespass from Armstrong. Armstrong eventually learned of the mining activity, and he sued Bromley Quarry claiming trespass and conversion of 855,500 tons of limestone. Bromley Quarry admitted that it removed 173,392 tons of limestone in the preceding 2 years – the period within the statute of limitations period applicable to Armstrong's claims. Bromley Quarry contended that the remaining "disputed rock" must have been mined before 1992. The district court granted Bromley Quarry's motion for summary judgment for any damage occurring before May 20, 2009 – the two years prior to the filing of the lawsuit. The district court did award Armstrong compensation for the limestone that Bromley Quarry admitted was converted within the statute of limitations period, but it treated Bromley Quarry as a good-faith trespasser and significantly decreased the amount of damages. The Court of Appeals affirmed the district court's findings on the statute of limitations but disagreed that Bromley Quarry was a good-faith trespasser and ordered it to pay enhanced value for the converted limestone. Both sides petitioned for review.

ISSUES: (1) Whether the lower courts applied the correct statute of limitations and statute of repose, (2) Whether evidence shows that Bromley Quarry was a good-faith trespasser

HELD: Under the statute of repose, Armstrong could only hope to recover damages for limestone removed since May 2001. Because of the nature of mining, none of the conversion was immediately apparently to Armstrong. But the blasting that Armstrong could feel, coupled with his suspicions about Bromley Quarry, triggered Armstrong's obligation to investigate if Bromley Quarry was trespassing. Armstrong did investigate by getting maps from regulatory agencies. These maps, which were prepared by Bromley Quarry, showed no mining activity on Armstrong's property. The lower courts erred by finding that summary judgment on the statute of limitations issue was appropriate. There were not enough undisputed material facts to determine whether Bromley Quarry's mining activity on Armstrong's property was reasonably ascertainable. Therefore, the case must be remanded. Kansas has a different damages rule for claims that are hybrid trespass/conversion claims and under that rule, the alleged trespasser carried the burden of proof. Under that burden, the sole question was whether Bromley Quarry had an honest and reasonable belief that it had a legal right to be on Armstrong's property and mine the limestone. Because Bromley Quarry failed to meet its burden of proof, the Court of Appeals correctly determined that Armstrong was entitled to enhanced value damages.

STATUTE: K.S.A. 49-101, -106, -402; 60-513(a)(1), -513(a)(2), -513(b)

Kansas Supreme Court – Criminal

Evidence; Sentencing
State v. McCormick
Sumner District District Court – Affirmed in part, reversed in part, convictions affirmed
Court of Appeals – Affirmed in part, reversed in part
No. 109,985 – September 9, 2016

FACTS: McCormick and a friend hosted two 13-year old girls in his basement at a party, purchasing alcohol for the girls using money they provided. Both girls were very intoxicated and neither remember any sexual activity with McCormick. When one of the girls, B.P., awoke, she was not wearing pants. B.P.'s mother noticed she was intoxicated and called the police. Taking the responding officer's suggestion, B.P. underwent a rape examination. A swab taken from McCormick's cheek showed DNA that matched the swab from B.P.'s labia. At trial, the State presented testimony regarding the other girl's appearance when she was found at McCormick's house. McCormick moved for a downward durational departure sentence, arguing that the mitigating circumstances of alcohol use and age justified a lesser sentence. The district court refused to depart and McCormick appealed. McCormick's petition for review was granted.

ISSUES: (1) Whether testimony regarding the appearance of the non-victim was prejudicially erroneous, (2) Whether the district court erred by improperly considering an aggravating factor during sentencing

HELD: McCormick believed that allowing evidence of the non-victim's appearance was both irrelevant and overly prejudicial. But in addition to being charged with rape, McCormick was charged with unlawfully hosting minors consuming alcohol. The evidence of the other girl's appearance was relevant to prove that charge. McCormick suggests that a district court is not allowed to review aggravating factors when considering a departure sentence. Here, the district judge referred to an "aggravating factor" during sentencing, making it impossible to determine whether the correct standard was followed. The case was remanded for resentencing.

DISSENT (Stegall, J., joined by Luckert and Rosen, JJ): The plain statutory language of K.S.A. 2012 Supp. 21-6627(d)(1) does not command a weighing of aggravating and mitigating factors, but it also does not prohibit such a weighing. The majority opinion added words to the statute that were not put there by the legislature. McCormick's sentence was valid and should have been affirmed.

STATUTES: K.S.A. 2012 Supp. 21-6627, -6627(d)(1); K.S.A. 60-404

Kansas Supreme Court – Criminal

Appellate practice; Constitution; Criminal law; Prosecutors
State v. Sherman
Crawford District District Court – Affirmed
No. 113,105 – September 9, 2016

FACTS: Sherman convicted in 2007 of first-degree felony murder. He filed timely appeal which was not docketed until 2014. On appeal he claimed prosecutorial misconduct denied him a fair trial, citing prosecutor’s repeated attempts to discuss reasonable doubt standard with analogies including a missing face from Mount Rushmore. Sherman also claimed district court erred in denying Sherman’s motion for mistrial after State inadvertently violated the order in limine by showing tape of Sherman’s interrogation. Finally, Sherman claimed a retrial would violate his due process rights due to long delay between filing of his notice of appeal and its final adjudication.

ISSUES: (1) New Standard – “Prosecutorial Error”, (2) New Standard – “Prosecutorial Misconduct”, (3) Application of New Standard, (4) Violation of Order in Limine, (5) Due Process if Retrial Ordered

HELD: State v. Tosh, 278 Kan. 83 (2004), and progeny are reviewed. Appellate review of prosecutorial behavior is narrowed and renamed to announce a new standard.  The “particularized harmlessness inquiry” commanded by Tosh is overruled. Whenever a claim is asserted that any act of prosecutor has denied a criminal defendant due process rights to a fair trial, appellate court will refer to claim and resulting judicial inquiry as a claim of “prosecutorial error.” To determine whether prosecutorial error occurred, appellate court must decide whether prosecutorial acts complained of fall outside wide latitude afforded prosecutors to conduct State’s case and attempt to obtain a conviction in a manner that does not offend the defendant’s constitutional right to a fair trial. If error is found the appellate court must next determine whether error prejudiced the defendant’s due process rights to a fair trial. In evaluating prejudice for reversible prosecutorial error, appellate courts shall exclusively apply traditional constitutional harmlessness inquiry in Chapman v. California, 386 U.S. 18 (1967), and must consider any and all alleged indicators of prejudice as argued by the parties. While strength of evidence against the defendant may secondarily impact this analysis, it must not become the primary focus of the inquiry.

Prosecutorial acts properly categorized as “prosecutorial misconduct” are erroneous acts done with a level of culpability that exceeds mere negligence. A prosecutor who acts with knowledge and intent outside the wide latitude afforded prosecutors, or with a malicious or gross disregard for fair trial rights of the defendant, is subject to sanction for such misconduct in a separate proceeding outside the confines of the criminal case within which the misconduct occurred.  Sanction for prosecutorial misconduct may be traditional remedy of disciplinary referral, and/or orders to offending prosecutor, to be heard in separate proceedings, to show cause why prosecutor should not be found in contempt of court.

In this case, no prosecutorial error because methods used at time of trial were within the prescribed wide latitude afforded prosecutors. Mount Rushmore analogy would be error if it occurred today, but in 2007 prosecutorial use of puzzle analogy was still common practice.

District court did not err in denying Sherman’s motion for mistrial.  No possibility Sherman was prejudiced where State later brought in identical or substantially similar prior crime evidence without objection, and district court gave appropriate curative instructions.

Finding no reversible error, Sherman’s due process claim is moot.

STATUTES: K.S.A. 2015 Supp. 60-261; K.S.A. 22-3423(1)(c), 60-455

Kansas Supreme Court – Criminal

State v. Solis
Johnson District District Court – Affirmed
No. 111,556 – September 9, 2016

FACTS: After first trial ended without unanimous jury decision, Solis convicted in second trial of first-degree murder for the December 2006 beating and strangulation death of former girlfriend. At time of victim’s death, Solis was on probation for March 2006 domestic battery conviction. Prior to second trial, parties agreed that evidentiary rulings from first jury trial remained in effect, which allowed specific evidence of discordant relationship between Solis and victim. On appeal, Solis challenged the admission of evidence of prior crimes or civil wrongs. He also claimed for first time on appeal that district court erred in failing to give jury a limiting instruction to not use his prior batteries as evidence of propensity; failing to sua sponte instruct jury on lesser included offenses of reckless second-degree murder and involuntary manslaughter; and giving jury an outdated instruction on reasonable doubt.  Solis also claimed cumulative error denied him a fair trial.

ISSUES: (1) Preservation of evidentiary claims for appellate review, (2) Failure to give K.S.A. 60-455 limiting instruction, (3) Lesser-included offense instruction, (4) Instruction on reasonable doubt, (5) Cumulative error

HELD: Parties agreed that evidentiary ruling from first trial were still in effect, but Solis did not seek to have his first trial objections treated as continuing objections for second trial. No deviation from requirement of a contemporaneous objection at trial in order to preserve an evidentiary issue for appellate review. Even if Solis’ evidentiary claims implicate due process, his unpreserved constitutional challenge is indistinguishable from claim the Court refused to consider in State v. King, 288 Kan. 33 (2009), decided prior to Solis’ second trial.

Trial court should have given limiting instruction, but failure to do so was not clearly erroneous under facts in this case where jury heard enough other evidence of Solis’ unusual behavior toward Crump and couple’s discordant relationship to render challenged testimony corroborative rather than determinative.

No clear instructional error in this case. Instructions on second-degree reckless murder and involuntary manslaughter would have been legally appropriate, but questionable under facts because courts treat strangulation as a factor favoring an intentional and premeditated murder. Also, creative argument based on provisions of K.S.A. 2015 Supp. 21-5202(c) - as suggesting that proof of intentional conduct suffices to prove reckless conduct - is rejected because this recodified criminal statute does not apply to Solis’ 2006 crime.

As decided in State v. Herbel, 296 Kan. 1101 (2013), an instruction stating the jury should find defendant guilty if it has no reasonable doubt as to truth of any of the claims required to proved by the State is not erroneous, albeit preferred language is whether jury has no reasonable doubt as to truth of each of the claims required to be proved by the State.

Cumulative error claim fails. District court’s failure to give limiting instruction was not clearly erroneous, and to the extent error occurred in not instructing jury on lesser included offenses, it did not prejudice Solis or deny him a fair trial.

STATUTES: K.S.A. 2015 Supp. 21-5103(d), -5202(c), 22-3414(3); K.S.A. 21-3402, -3404, 60-404, -455

Kansas Supreme Court – Criminal

Appellate procedure; Criminal law; Evidence
State v. Thach
Sedgwick District District Court – Affirmed
No. 112,231 – September 9, 2016

FACTS: Thach convicted of felony murder and aggravated burglary. Charges arose from Thach and three others breaking into victim’s home and killing him. Thach appealed, claiming State failed to present sufficient evidence of his intent to enter victim’s home to commit an aggravated battery in support of the felony-murder and aggravated burglary convictions where State focused on premeditation of Thach and others acting with intent to kill rather than to batter the victim. He further argued circumstantial evidence cannot be used under K.S.A. 2015 Supp. 21-5202 to establish he acted with the requisite mental state. Thach also claimed he was denied due process by State charging him, in the alternative, of two theories of first-degree murder.

ISSUES: (1) Sufficiency of the evidence of intent, (2) Alternative first-degree murder charges

HELD: Sufficient evidence supported the felony-murder and aggravated burglary convictions. State may use circumstantial evidence to prove a defendant’s conscious objective or desire to engage in the conduct or cause the result of a charged crime and thus meet mental state requirement defined in K.S.A. 2105 Supp. 21-5202(h). Thach abandoned constitutional nullity challenge to that statute by not raising it in district court.

Constitutional challenge to the alternative murder charges is considered notwithstanding Thach’s failure to raise it in district court. Premeditated and felony murder are not separate, distinct offenses but are two separate theories under which crime of first-degree murder may be committed. State’s presentation of two alternative theories of first-degree murder did not violate Thach’s due process rights.

STATUTE: K.S.A. 2015 Supp. 21-5202, -5202(h), -5402(a)(2), -5402(c)(1)(J), -5413(b)(1)(B), -5807(b)

Kansas Supreme Court – Criminal

STATUTE K.S.A. 2011 SUPP. 21-5909(a)(1); Sufficiency of Evidence
State v. Wilkins
Shawnee District District Court – Reversed, sentence vacated
Court of Appeals – Reversed
No. 109,313 – September 9, 2016

FACTS: Wilkins was convicted of aggravated intimidation of a witness after it was alleged that she attempted to dissuade F.W., a witness, from testifying at trial as part of a plea agreement. At Wilkins' trial, the jury asked for clarification as to the meaning of the phrase "with the intent to thwart or interfere in any manner with the orderly administration of justice" as it was used in the PIK instruction. The district court declined to elaborate on the meaning beyond asking a prosecutor to clarify what it meant. The prosecutor told the jury that it was, "Trying to influence a witness not to give testimony." On appeal, a divided panel of the Court of Appeals affirmed Wilkins' conviction. Wilkins' petition for review was accepted.

ISSUE: Whether there was sufficient evidence to support the conviction

HELD: There was insufficient evidence to show that Wilkins attempted to keep F.W. from testifying. Rather, the evidence showed that Wilkins wanted to keep F.W. from accepting a plea that Wilkins thought was ill advised given the strength of the State's case. It was error to equate Wilkins' attempts to prevent a plea with Wilkins attempting to prevent F.W.'s testimony in open court. Because there was insufficient evidence that Wilkins attempted to prevent F.W. from testifying, the conviction must be overturned.

STATUTE: K.S.A. 2011 Supp. 21-5908, -5908(c)(1), -5909, -5909(a)(1), -5909(b)(2), -5909(b)(4)