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December 24, 2014, Appellate Court Digests
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Kansas Supreme Court – Civil





NO. 107,776 – DECEMBER 24, 2014


FACTS: Krier died after treatment at Ashland Health Center. Whaley, Krier's adult daughter, submitted a notice of claim to Ashland asserting claims against the hospital for the alleged negligence of its employees, including nursing staff, Sharp and Bigler, four days after submitting the notice of claim to the hospital, Whaley commenced two lawsuits, each naming Sharp and Bigler as defendants, but the hospital was not a defendant in either case. The district court granted summary judgment to Sharp in both suits, ruling that Whaley was required to comply with the statutory notice requirements of the Tort Claims Act and the 120-day waiting period mandated by K.S.A. 12-105b(d). The Court of Appeals affirmed the district court and the conclusion that the statutory notice is still required when the lawsuit is filed only against a municipal employee.


ISSUES: (1) Kansas Tort Claims Act, (2) notice, and (3) municipal employees


HELD: Court held the statutory notice requirement in K.S.A. 12-105b(d) refers only to claims against a municipality and does not apply to claims made against a municipal employee. Consequently, failure to comply with the statute does not deprive a district court of jurisdiction over a lawsuit against a municipal employee. Court stated its decision necessarily overrules King v. Pimentel, 20 Kan. App. 2d 579, 890 P.2d 1217 (1995). Court reversed to the trial court for further proceedings.


STATUTES: K.S.A. 12-105a, -105b(d); K.S.A. 40-3401, -3403; K.S.A. 60-256, -513, -2102; and K.S.A. 75-6101

Kansas Supreme Court – Criminal




NO. 106,600 – DECEMBER 24, 2014


FACTS: Castleberry seeks review of the Court of Appeals' decision affirming his jury trial convictions and sentence for obstruction of official duty, distribution of methamphetamine, unlawful use of a communication facility to arrange a drug sale, failure to affix a drug tax stamp, and fleeing or attempting to elude a police officer. State v. Castleberry, 48 Kan. App. 2d 469, 293 P.3d 757 (2013). Castleberry arranged to sell methamphetamine to a police informant in a telephone conversation and then, after effecting the sale in a park, led police on a high-speed chase before being subdued and arrested. On petition for review from the Court of Appeals, Castleberry argues: (1) The State failed to establish that Castleberry used a communication facility in Lyon County so as to establish venue on that charge; (2) the district court's failure to instruct the jury on the definition of a moving violation for purposes of fleeing and eluding was clearly erroneous; (3) the district court's failure to give a unanimity instruction on the obstruction of official duty charge was clearly erroneous; (4) the state presented insufficient evidence on all of the instructed alternative means of committing distribution of methamphetamine; and (5) the district court violated his rights to the Sixth and 14th amendments to the U.S. Constitution when it sentenced him to an increased sentence based upon his criminal history without requiring the State to prove it to a jury beyond a reasonable doubt.


ISSUES: (1) Venue for unlawful use of a communication facility, (2) jury instructions, (3) sufficient evidence, and (4) criminal history


HELD: Court affirmed Castleberry's convictions. Court held venue to prosecute an alleged drug dealer for the crime of unlawful use of a communication facility is proper in the county where a potential drug purchaser initiates a telephone call to the dealer when the dealer knows the location of the caller and intentionally uses that telephone communication to facilitate the sale of drugs. Court held that engaging in reckless driving or committing five or more moving violations are "options within means," rather than alternative means. Accordingly, the State was not required to prove both reckless driving and the commission of five or more moving violations. Therefore, it was not clearly erroneous to fail to instruct upon the definition of a moving violation in this case because ample evidence supported one of the options within a means—reckless driving—upon which the jury was instructed. Court held because Castleberry's actions were all part of one continuous act, unbroken by a fresh impulse, this was not a multiple acts case. Consequently, the district court did not err in failing to give a unanimity instruction. Court held Castleberry conceded that the State presented sufficient evidence that he actually and/or constructively transferred methamphetamine to Foltz. Because the state was not required to also present evidence the he attempted to transfer methamphetamine, Castleberry's conviction was supported by sufficient evidence and was affirmed. Court denied Castleberry's criminal history issues based on State v. Ivory, 273 Kan. 44.


STATUTES: K.S.A. 8-1568; K.S.A. 21-36a01, -36a05, -36a07; and K.S.A. 22-2602, -2603, -3414




NO. 105,918 – DECEMBER 24, 2014


FACTS: In consolidated trial, jury convicted Smith-Parker of first-degree murder of one victim, second-degree intentional murder six days later of second victim, and aggravated assault. On appeal Smith-Parker claimed in part: (1) insufficient evidence of premeditation supported the first-degree murder conviction; (2) aiding and abetting is an alternative means crime; (3) district court erroneously consolidated the two cases for trial; (4) district court abused its discretion by excluding statement by second victim as hearsay, and as violating Confrontation Clause; (5) district court erred by instructing jury that it willenter guilty verdict if jury no reasonable doubt the State has proven murder in first-degree; (6) district court erred by failing to tell jurors to begin deliberations anew when alternate juror was substituted; (7) district court abused its discretion by failing to recall jury where the removed juror alleged his removal was sought by other jurors because of disagreement over voting position, and that version differed from the presiding juror’s representation; and (8) cumulative error denied Smith-Parker a fair trial.


ISSUES: (1) Sufficiency of evidence on premeditated first-degree murder, (2) aiding and abetting, (3) consolidation, (4) victim’s out-of-court statement, (5) jury instruction, (6) failure to instruct jury to begin deliberations anew, (7) motion to recall jury, and (8) cumulative error


HELD: Under interlocking evidence in the consolidated cases, jury could draw a reasonable inference that Smith-Parker was guilty of first-degree premeditated murder, at least as an aider and abettor.


Smith-Parker’s alternative means claim is defeated by State v. Betancourt, 299 Kan. 131 (2014).


The third statutory condition in K.S.A. 22-3203 for consolidation is satisfied, and no abuse of district court’s discretion in consolidating the two cases.


District court erred by excluding victim’s out-of-court statement. State has no right to challenge hearsay statements based on Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004), and the out-of-court statement was not hearsay because it was not offered for literal truth of the matter.


District court erred by instructing jury in a manner that essentially forbade jury from exercising its power of nullification. Although a criminal jury should not be instructed on its inherent power of nullification, an instruction telling the jury it "must” or "will” enter a verdict is too close to directing a verdict for the state. Contrary holding in State v. Lovelace, 227 Kan. 348 (1980), is overruled.


District court erred by directing jury to continue their deliberations with the replaced juror, rather than to begin deliberations anew.


District court erred by failing to recall at least the removed juror and the presiding juror to investigate the allegation of jury misconduct.


Smith-Parker’s convictions are reversed under cumulative error doctrine. Case is remanded for further proceedings.


STATUTES: K.S.A. 21-3205; K.S.A. 22-3201(1), -3202(1), -3203, -3205, -3414(3); and K.S.A. 60-455, -460

Kansas Court of Appeals – Civil




NO. 111,294 – DECEMBER 24, 2014


FACTS: District court terminated father’s rights to five children after finding state had presented a sufficient evidentiary basis for presuming the father was an unfit parent, and that termination of father’s rights was in best interests of the children. Father appealed, claiming district court violated his due-process rights by applying presumption of unfitness without first hearing evidence father wanted to present on that presumption.


ISSUES: Presumption of unfitness


HELD: District court’s procedure violated father’s due-process rights. When considering whether to apply a presumption of unfitness as a basis for terminating parental rights, district court must allow both parties to present evidence relevant to the presumption before deciding whether to apply it. Here, district court decided to apply the presumption before father presented evidence relating to the factual basis for it. District court’s judgment is reversed. Case is remanded for further proceedings.


STATUTES: K.S.A. 2013 Supp. 38-2271(a), -2271(a)(1)-(13), -2271(a)(5), -2271(b); and K.S.A. 60-414