Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 80 No. 3 Pg. 42 |
| Pages | 42 |
| Publication year | 2011 |
Appellate Decisions
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Supreme Court
Criminal
STATE V BROWN WYANDOTTE DISTRICT COURT - SENTENCE VACATED AND REMANDED NO. 100,881 - JANUARY 7, 2011
FACTS: Brown convicted of attempted aggravated indecent liberties with a child, and aggravated indecent solicitation. Sentence included hard 25 life sentence under Jessica's Law (K.S.A. 21-4643). On appeal Brown claimed: (1) State witnesses were improperly allowed to testify about victim's statements to them prior to victim testifying; (2) district court should have instructed jury on voluntary intoxication because charged offenses required proof of specific intent and there was evidence of Brown's intoxication; and (3) error to give "deadlocked jury" instruction prior to jury's deliberations. Brown also claimed no jurisdiction to sentence under Jessica's law because charging document did not state Brown's age at time of the offense, and district court failed to instruct jury to find Brown was 18 years or older at the time of the offense.
ISSUES: (1) Admission of prior consistent statements, (2) voluntary intoxication instruction, (3) Allen instruction, (4) age in charging document, and (5) age of defendant as element of offense
HELD: Brown did not object to admission of state witnesses about victim's statements, and victim testified at trial and was subject to cross-examination regarding those statements. Under State v. Johnson, 286 Kan. 824 (2008), Brown failed to preserve this issue for appeal, and statements were admissible.
Attempt and aggravated indecent liberties are specific intent crimes, as is aggravated indecent solicitation, in accord with the only Kansas case discussing this issue, Richardson v. State, 2008 WL 1946836 (Kan. App. 2008). However, Brown failed to show he was intoxicated enough to impair his mental faculties, and intoxication was not a theory of his defense. State v. Trussel, 289 Kan. 499 (2009), and supporting cases applied.
Giving Allen-type instruction was error, but error was harmless in this case because evidence against Brown would not have resulted in a different jury verdict.
Brown's challenge to the charging document presents no reversible error, applying State v. Gonzales, 289 Kan. 351 (2009).
Under Gonzales, State v. Morningstar, 289 Kan. 488 (2009), and State v. Bello, 289 Kan. 191 (2009), there was insufficient evidence of Brown's age presented to the jury to find error was harmless in this case. Sentence is vacated and remanded to district court for resentencing.
STATUTES: K.S.A. 21-3301, -3301(a), -3504, -3504(a)(3)(A), -3504(c), -3511, -3511(a), -3511(b), -4643, -4643(a)(1)(G); and K.S.A. 22-3601(b)(1)
STATE V. DIVINE MONTGOMERY DISTRICT COURT - REVERSED AND REMANDED NO. 102,907 - JANUARY 28, 2011
FACTS: Divine placed on probation after 2003 guilty plea to lewd and lascivious behavior. Pursuant to Kansas Offender Registration Act (KORA), Divine required to register as a sex offender for 10 years, and registration requirement also imposed as condition of probation. Some three years after completing probation, Divine filed petition to expunge his conviction. District court accepted and executed journal entry approved by prosecutor and defense counsel. Divine then filed motion to lift the registration requirement because his conviction had been erased. District court found K.S.A. 224908 prevented granting the petition. Divine's appeal transferred to Supreme Court.
ISSUE: (1) Expungement of conviction and (2) KORA
HELD: Expungement of Divine's lewd and lascivious conviction terminated his status as an offender required to register under KORA. Expungement statute does not provide an exception for disclosure of the expunged conviction through KORA registration, and expungement order in this case did not make such disclosure a special exception under K.S.A. 2010 Supp. 21-4619(f)(3). State v. Riedel, 242 Kan. 834 (1988), is distinguished. Relief sought by Divine flowed from expungement statute, not from a court order barred by K.S.A. 22-4908. State's challenge to technical errors in the expungement petition as jurisdictional is not properly before the court where State did not appeal the expungement order, and participated in any procedural errors by agreeing to submit matter on an approved journal entry. Reversed and remanded for district court to rescind its order that Divine must continue to register, and to enter order that Divine's registration requirement has terminated as matter of law.
STATUTES: K.S.A. 2010 Supp. 21-4619, -4619(f), -4619(f)(3); K.S.A. 2010 Supp. 22-4902, -4902(a); K.S.A. 2002 Supp. 22-4906; K.S.A. 2000 Supp. 22-4908(d); K.S.A. 1987 Supp. 21-4619(f)(4); K.S.A. 20-3018(c); K.S.A. 22-4901 et seq., -4908; and K.S.A. 60455, -2103(a), -2103(h)
STATE V FINCH DOUGLAS DISTRICT COURT - APPEAL SUSTAINED NO. 101,136-JANUARY 7, 2011
FACTS: In DUI prosecution, district court granted motion for judgment of acquittal, based on margin of error for Intoxilyzer 5000 used to test Finch's blood-alcohol concentration. State's appeal on question reserved was transferred to Supreme Court.
ISSUE: Interpretation of K.S.A. 8-1567(a)(2)
HELD: Case concerns matter of statewide interest important to the correct and uniform prosecution of DUI cases. K.S.A. 2007 Supp. 8-1567(a)(2) is a per se statute. State need not prove actual alcohol concentration of driver's blood or breath at time of driving or at time of measurement. It also need not prove alcohol actually impaired the defendant's driving. 'The statute is clear and unambiguous. It neither requires nor prohibits fact-finder's consideration of Intoxilyzer 5000's margin of error. Such margin of error is merely one factor to be considered in arriving at the verdict. Here, State's evidence was sufficient to establish a prima facie case. Defense challenge to the reliability and accuracy of state's evidence was for jury to decide. District court judge erred in granting motion for judgment of acquittal. Error also noted in district court judge's reliance on testimony the judge was familiar with from another case .
STATUTES: K.S.A. 2009 Supp. 8-1567(a)(2); K.S.A. 2007 Supp. 8-1567(a)(1), -1567(a)(2), -1567(a)(3); K.S.A. 8-1567(a)(2); and K.S.A. 60-409(a), -409(b)
STATE V MCCASLIN SEDGWICK DISTRICT COURT - AFFIRMED NO. 99,628 - JANUARY 21, 2011
FACTS: McCaslin convicted of first-degree premeditated murder, rape, and aggravated arson. Sentence included hard 50 prison term for the murder conviction. On appeal, McCaslin claimed: (1) error to admit hearsay evidence in violation of right of confrontation; (2) insufficient evidence supported the convictions; (3) prosecutorial misconduct in badgering McCaslin during cross-examination, asking him a question having no good-faith evidentiary basis, and inflaming emotions and passions of jury during rebuttal remarks; (4) error to admit video evidence of fire department's arrival and response to fire; (5) error to admit evidence of photograph of burned house which included victim's burned naked body; (6)...
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