Saturday, June 27, 2009

Right to refuse to consent to search

Here is an article on reporting on a recent Nevada case holding that it is improper for a prosecutor to comment on the refusal to consent to a search, just like it is improper for a prosectuor to comment on the exercise of other constitutional rights.

It's particularly useful becase we have been arguing (so far unsuccesfully) that it is improper in DUI cases to comment on the refusal to take a breath test in a DUI case, or to use the refusal as evidence. So far a lot of decisions have relied on Fifth Amendment analysis (saying that a blood/breath test isn't testimonial).

But if you apply a straight-forward Fourth Amendment analysis, as was applied in the Nevada case, it seems like the same result should obtain. You have a right to refuse consent (even if the officers have other authority to conduct the search over your refusal to consent).

Let's say officers have a warrant to search your house, but they know it might be on shaky grounds. So they come to your house and first ask for consent to search, which would render any problems with the warrant moot. But you refuse consent. Can a prosecutor use that refusal at trial against you? Not according to the Nevada case. Even though the officers could go ahead and search pursuant to the warrant. And why would investigation of DUI be any different? Even if the officers can require the test under their statutory authority, you still have the right to refuse.

Anyway, keep this in mind in these cases where the state is relying on the statute that says refusal is admissible in DUI cases.

[Update: here is a Sentencing Law and Policy post reporting that the Ohio Supreme Court upheld a statute criminalizing refusal to take a chemical DUI test in light of a Fourth Amendment challenge.]

Officer, put down that phone

Andrew M. Delaney, of Delaney Law Office, won in State v. Isaac, No. 101,230 (Kan. App. June 26, 2009) (unpublished), affirming Judge Weingart's suppression of evidence retrieved by police off of Isaac's phone without a court order.

Following Isaac's arrest for drug charges, his cell phone rang several times. Ultimately, a police officer answered the phone, and the caller stated that he needed "a 20," which was allegedly slang for $20 worth of marijuana. The police then obtained names and numbers off of the phone, which led to the discovery of other evidence. The district court suppressed the evidence obtained from the phone on evidentiary grounds and because the evidence was obtained without a search warrant. The State filed an interlocutory appeal of the suppression.

The COA affirmed the district court's suppression of the evidence obtained from the interception of the phone call and the subsequent search of the data on Isaac's phone. Regardig the interception of the phone call, the court noted, "Law enforcement officers in Kansas can legally intercept wire, oral, or electronic communications in two ways, either by consent or by court order." (Citing K.S.A. 22-2515 and K.S.A. 22-2516.) The court held:
The officers followed none of the statutory procedures authorizing the interception of phone calls in this case. Clearly, they did not try to get consent from Isaac, nor did they seek a court order. They simply answered the phone, intercepted the call, and played along with the caller.

The owner of a cell phone has just as much an expectation that his or her phone calls will be private as an owner of a telephone that uses wires. See K.S.A. 21-4002(a)(1); Rupnick, 280 Kan. at 732-33. In his case, Isaac enjoyed such an expectation. . . . We hold the district court's suppression of the evidence of the phone call and what followed between the deputy and the caller was proper.
Regarding the subsequent search of the phone, the COA also agreed with the district court's comparison of the search of data from the phone to the search of information from a personal computer. The court held that there was not a valid search incident to arrest because the search of the phone was several hours after the arrest. The court also held that the search of the phone was not justified by probable cause plus exigent circumstances. The court noted that there was neither probable cause nor exigent circumstances to search the phone.

On a prior bad acts issue, the COA did reverse the district court's decision to prohibit prior bad acts evidence, noting that the district court failed to comply with the three-step analysis set forth in Gunby.
[Update: the state did not file a PR and the mandate issued on July 30, 2009.]

Friday, June 26, 2009

Gant applied in Kansas

Don Lill and Monte Miller (representing co-defendants) won in State v. Henning, No. 98,118 (Kan. June 26, 2009) affirming Judge Wheeler's suppression based on an improper search incident to arrest. The briefing and argument largely discussed the recent amendment to K.S.A. 22-2501(c), and the KSC decision spends considerable time discussing the legislative history of that amendment. But in the end, the KSC doesn't decide the specific contours of the amended statute:
Under these circumstances, we believe we can safely say that the legislature at least intended to undercut our holding in Anderson. We thus rule here that K.S.A. 22-2501(c)'s current wording would permit a search of a space, including a vehicle, incident to an occupant's or a recent occupant's arrest, even if the search was not focused on uncovering evidence only of the crime of arrest. We need not further define K.S.A. 22-2501(c)'s current parameters because Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710 (2009) leaves those parameters without legal effect.

Carl blogged about Gant here. The KSC applied Gant and the candid officer made it an easy decision:

Factually, this case is more similar to Gant than to Belton but, analytically, a factual comparison is unnecessary. There is no dispute that there was no warrant to search the car. A recognized exception to the Fourth Amendment's warrant requirement must apply, or the search was invalid and the evidence it uncovered appropriately suppressed by the district court judge. When a search is challenged, the State bears the burden of demonstrating that it was lawful. The State's only argument here is that the search of the car was a proper search incident to the arrest of Henning under K.S.A. 22-2501(c). (Zabriskie, although out of the car and standing near Henning during the search, had not yet been arrested herself.) Even more specifically, the State's only argument, based as it must be on the testimony of Stevenson, is that the search depended upon the recently amended and newly effective language of K.S.A. 22-2501(c), which, as we have discussed above, considerably broadened its scope and exceeded the purposes allowed for such searches under the Chimel rule. As Stevenson noted, his training was up-to-the-minute and told him he was permitted to search the car not only for evidence of the crime of arrest but for evidence of another crime or crimes.

Gant expressly disapproved of this approach.

It's worth repeating that the KSC held that suppression is the correct remedy:
A recognized exception to the Fourth Amendment's warrant requirement must apply, or the search was invalid and the evidence it uncovered appropriately suppressed by the district court judge.

This should be cited on the remedy issue if brought up by the state.

Wednesday, June 24, 2009

Exposure to communicable disease statute constitutional, but not proven

Lydia Krebs won her second KSC case of the day in State v. Richardson, No. 100,445 (Kan. June 19, 2009), reversing two Lyon County convictions for exposing another to a life-threatening disease. The KSC reviewed K.S.A. 21-3435, making it a crime "for an individual who knows oneself to be infected with a life threatening communicable disease knowingly: (1) to engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening disease." The KSC held that the statute defines a specific intent crime and that any other interpretation would leave the statute constitutionally suspect:
without proffering any authority, the State contends that giving effect to the statute's plain specific intent language would actually thwart the legislature's intended purpose of preventing the intentional exposure of others to HIV. The State argues that any act of sexual intercourse or sodomy by an HIV positive person, even utilizing a condom, creates some element of risk that the virus will be transmitted to the sex partner, so that total abstinence is the only means by which an infected person may avoid exposing another to HIV. Accordingly, the State suggests that the specific intent to expose another to HIV is inherently included in the defendant's general intent to engage in sexual intercourse. Under the State's interpretation, a person infected with HIV must be totally abstinent or risk being prosecuted for a felony each and every time he or she engages in sexual intercourse or sodomy, regardless of whether the act is between two consenting (perhaps married) adults with full knowledge of the virus and utilizing prophylactic measures. We disagree.

The parties did not address whether the State's interpretation might be constitutionally suspect. A person's decision to engage in private, consensual sexual conduct is protected by the United States Constitution. See Lawrence v. Texas, 539 U.S. 558, 156 (2003); Griswold v. Connecticut, 381 U.S. 479 (1965). Nevertheless, if the legislature intended to criminalize all acts of sexual intercourse or sodomy by any person infected with HIV, it could certainly have said so without employing specific intent language. The State's public policy arguments cannot be reconciled with the plain language of K.S.A. 21-3435(a)(1), and we find that the statute creates a specific intent crime. The State was required to prove that Richardson, knowing he was infected with HIV, intentionally engaged in sexual intercourse with the specific intent to expose [the other individuals] to HIV.

The KSC rejected Mr. Richardson's claims that the statute fails to adequately define "life threatening" disease and what constitutes "exposing" someone to such a disease. The KSC held that "life threatening" means "something that poses a threat to life" and that such a definition provides sufficient notice that a person of ordinary intelligence would understand what is prohibited. The KSC noted that intentional exposure to influenza might support a prosecution under this statute, although "the prosecutor's burden of establishing the requisite specific intent may be more difficult to carry."

Finally, the KSC applied this interpretation and held that the state had failed to provide evidence that Mr. Richardson had the required specific intent for conviction under K.S.A. 21-3435:
[T]he State attempts to shift the burden of proof by arguing that Richardson "presented no direct evidence of his own belief that a low viral load could not transmit or expose another to the virus" and that he failed to demonstrate at trial that the sex with either of these women was consensual. Of course, the State has the burden of proving beyond a reasonable doubt each and every element of the crime, including Richardson's specific intent to expose M.K. and E.Z. to HIV. Richardson had no burden to disprove specific intent.

Finally, at oral argument, the State asserted that the trial testimony of Richardson's treating physician established that Richardson had been thoroughly educated on the risks of transmitting HIV through sexual intercourse. That knowledge, the State argues, is a circumstance which would support the specific intent element. However, Dr. Penn's testimony was less than definitive on that point. When asked by the prosecutor whether he had discussed with Richardson "safe or acceptable practices for engaging in sexual contact," the doctor replied, "I think we did early on, but I–I can't give you a time." Subsequently, when questioned by defense counsel, the doctor conceded that his records did not reflect such counseling for Richardson, even though the doctor maintained comprehensive records which should have reflected such a conversation with a patient. In short, the doctor's testimony did not establish the
circumstance which the State now asserts.

Here is coverage of the appeal in the Lawrence Journal-World.

Can't use juvenile adjudications for persistent sex offender classification

Lydia Krebs won in State v. Boyer, No. 98,763 (Kan. June 19, 2009), vacating an enhanced sentence in a Sedgwick County case under K.S.A. 21-4704(j) based on a prior juvenile adjudication. This was primarily a statutory construction case--the KSC had to decide whether a juvenile adjudication satisifies the part of K.S.A. 21-4704(j) which is triggered if the defendant has "at least one [prior] conviction for a sexually violent crime." Based on its precedent, that's pretty easy:
This court and the Court of Appeals have repeatedly held that the legislature not only knows how to distinguish between juvenile adjudications and adult convictions, but it has done so in several statutes. To hold that a reference to convictions in K.S.A. 21-4704(j) now also encompasses juvenile adjudications would throw doubt on the application of other current statutes. Presumably, the legislature has written the current statutes with the court's prior interpretations in mind. It is the prerogative of the legislature, not the court, to amend those statutes. We affirm the decision of the Court of Appeals in this case, holding that juvenile adjudications are not to be considered in the determination of persistent sex offender status under K.S.A. 21-4704(j).

This is sure consistent with what they've said before, so it's not too surprising. But it will sure make a big difference for persons who were dealt with previously in the juvenile system.

In limine violation and Doyle violation result in new trial

Rick Kittel and KU Defender Project student Sebastien Orosco won in State v. Pruitt, No. 100,039 (Kan. App. June 19, 2009), winning a new trial in a Lyon County attempted burglary prosecution. There were two trial errors that were of concern to the COA: (1) a violation of an in limine order when an officer/witness answered a question implying prior bad acts and (2) a Doyle violation, which was implicitly conceded in the state's brief. The COA found both errors and rejected the state's argument that they were harmless:
Here, the evidence against Pruitt was not overwhelming. For instance, the jury found Pruitt not guilty of the battery charge. This case depended on the credibility of the witnesses. Previously, we determined that the prosecutor's elicitation of testimony that police knew Pruitt because of "another incident" was a violation of the order in limine. Moreover, the trial court did not instruct the jury to disregard Keiss' testimony. In addition, the violation seemed to be intentional and Keiss' testimony was prejudicial. The prosecutor followed the order in limine violation with a Doyle violation. Although the trial court admonished the jury not to consider Pruitt's post-Miranda silence in its deliberation, the damage had been done in the credibility contest between Surmeier and Pruitt. The Doyle violation was apparently intentional, and Keiss' testimony was very prejudicial. Moreover, there is no telling what effect Keiss' testimony (in violating the order in limine and the post-Miranda silence rule) had in a case primarily based on credibility. As a result, we determine that Pruitt was substantially prejudiced by Keiss' testimony.
The COA also held that an Allen instruction, indicating that another trial would be a burden was improper under Salts (blogged about here), and reversed on that as well. It's another example of Salts resulting in a reversal where defense counsel objected to the pattern instruction, even though it was clearly erroneous in Salts itself.

[Update: the state did not file a PR and the mandate issued on July 23, 2009.]

Tuesday, June 23, 2009

Due Process violation for probation violation delay

Lydia Krebs won in State v. Curtis, No. 99,474 (Kan. App. June 19, 2009), reversing a Reno County probation violation finding. The defendant claimed a Due Process violation for a twenty-one month delay between filing of the motion revoke and the decision. The COA reviewed case law on probation violation delay, including the most recent KSC caselaw:
Here, Curtis does not argue he was prejudiced by the State's delay; rather, he argues the State waived the right to pursue revocation as a result of the violation. Thus, the issue is one of waiver. Although each of the cases cited above ultimately makes a legal finding as to whether the State has waived its right to pursue revocation of probation, none of the cases define waiver. Black's Law Dictionary defines waiver as the voluntary relinquishment of a known right. Waiver may be express or implied. "'An implied waiver may arise where a person has pursued such a course of conduct as to evidence an intention to waive a right, or where his conduct is inconsistent with any other intention than to waive it.'" Black's Law Dictionary. Applying this definition in the context of whether the State has waived its right to pursue probation revocation, courts necessarily must consider the State's conduct to determine whether such conduct reflects (1) reasonable diligence in pursuing revocation or (2) unreasonable inaction in pursuing revocation, indicating implied waiver.
The COA went on to apply a Barker v. Wingo constitutional speedy trial analysis and held that

(1) a time period of 616 days elapsed between Curtis' arrest and adjudication of his probation violation; (2) a 393-day delay in the adjudication can be attributed to an unreasonable failure by the State to pursue Curtis' case; and (3) Curtis made an affirmative assertion of his right to timely adjudication on more than one occasion. Our evaluation of these factors strongly support a finding that the State failed to act in a timely and reasonable manner in pursuing the adjudication of the probation violation. We find the State's failure in this regard represented an implied waiver on the part of the State to pursue the violation; thus, the court's decision to go forward with the revocation proceeding violated Curtis' right to due process. Accordingly, we reverse the probation revocation and vacate the order to serve the underlying sentence.
Interesting. Keep this in mind on probation violation cases.

[Update: the state did not file a PR and the mandate issued on July 23, 2009.]

Overbroad non-exclusive possession instruction

Meryl Carver-Allmond won in State v. Douglas-Keough, No. 100,316 (Kan. App. June 19, 2009)(unpublished), obtaining a new trial in a Reno County drug prosecution. The district court gave a nonexclusive possession instruction based on P.I.K. Crim. 3d 67.13-D, but it included all of the possible factors under that pattern instruction. Ms. Douglas-Keough objected to three of the factors being included because the state had not presented evidence of those factors. The COA agreed:
The seven factors were set forth as if they were facts supported by the evidence at trial. For instance, the jury was instructed that it may consider Douglas-Keough's "previous participation in the sale of a controlled substance." However, there was absolutely no evidence that Douglas-Keough ever sold drugs, and any inference that she may have done so was highly prejudicial. The jury was also instructed that it may consider the fact the controlled substance was found in plain view. There was no evidence that the drugs were found in plain view in the vehicle, but instead the evidence showed that the drugs were found in an empty pack of cigarettes shoved down between the driver's seat and the center console. The contradiction between the language of the instruction and the evidence presented at trial could have easily misled the jury as it decided whether Douglas-Keough possessed the drugs in question.
Another example of when an objection makes the difference. This is a suspect instruction in general--we don't tell juries what factors are important with regard to essential elements very often. Look carefully if this instruction is being pushed by the court or the prosecutor.

[Update: the state filed a PR on July 16, 2009.]

[Further update: the KSC denied the PR and the mandate issued on September 8, 2009.]

Thursday, June 11, 2009

Smell of alcohol from car or from driver?

Shawn Lautz won in State v. Carson, No. 101,242 (June 5, 2009)(unpublished), affirming Judge Chamber's suppression order in a Reno County drug prosecution. The COA held there was substantial competent evidence to support the district court's finding that Carson's consent to search was not voluntary, even if obtained during lawful detention. The COA went on to consider whether the officer had probable cause to search. Specifically, the COA considered whether the smell of alcohol during a traffic stop necessarily provided probable cause to search for an open container:
The facts of Bickerstaff are distinguishable from the facts herein. In Bickerstaff, there was positive evidence that the officer smelled alcohol emanating from the vehicle. Here, no such testimony was provided. Rowe testified that when Carson exited the vehicle, he could smell the odor of alcohol but could not distinguish whether the odor was coming from inside the vehicle or from Carson's person. Rowe smelled the faint odor of alcohol when he returned to search the vehicle, but this fact cannot be considered for purposes of determining whether probable cause existed because Rowe did not identify this odor until he began to search the vehicle.

Furthermore, the defendant in Bickerstaff denied she had been drinking, which upported the officer's valid belief that the odor of alcohol must have been coming from inside the vehicle and not from the defendant's person. Here, Carson admitted he had a couple of drinks. Thus, Rowe had less reason to suspect that alcohol was coming from an open container inside the vehicle as opposed to Carson himself. Finally, the defendant in Bickerstaff took a breath test which established that she had alcohol in her system. This fact was not present in Carson's case.

In finding that Rowe did not have probable cause to search Carson's vehicle, the district court emphasized Rowe's testimony that he did not suspect any illegal activity after Carson passed the field sobriety tests. Probable cause is a higher standard than reasonable suspicion. If Rowe did not reasonably suspect any illegal activity after Carson passed the field sobriety tests, there was no probable cause to
search the vehicle for open containers. We believe the holding in Bickerstaff should be limited to the facts of that case. Here, where Rowe did not see any open alcohol containers inside Carson's vehicle and Rowe could not even tell whether the odor of alcohol was coming from inside the car, we conclude the district court did not err in finding that Rowe lacked probable cause to search Carson's vehicle for open containers of alcohol.

Because the officer had neither valid consent nor probable cause to search, the COA affirmed the suppression order.

[Update: the state did not file a PR and the mandate issued on July 9, 2009.]

Acquittal in vehicular homicide case

Here is a Wichita Eagle article reporting that Steve Mank won an acquittal in State v. Pasteka, ending a Sedgwick County vehicular manslaughter prosecution.

We sure are seeing an increase in these cases where accidents are prosecuted as crimes. Good to see a jury recognize that accidents tragically happen.

Tuesday, June 09, 2009

ICE hold doesn't vitiate statutory right to speedy trial

Patrick H. Dunn won in State v. Montes-Mata, No. 98,883 (Kan. App. May 29, 2009), affirming Judge Wheeler's dismissal of Lyon County drug charges on statutory speedy trial grounds. The issue stemmed from a decision whether an immigration hold kept a person from being held solely by reason of the pending state charges:
We conclude the immigration detainer issued to the Lyon County Sheriff's Department merely expressed ICE's intention to seek future custody of Montes-Mata and requested notice from Lyon County prior to terminating Montes-Mata's confinement. The detainer did not, however, place a hold on Montes-Mata and he continued to be held in custody solely by reason of the instant charges.

Consequently, the immigration detainer issued by ICE did not vitiate Montes-Mata's right to be brought to trial within 90 days under K.S.A. 22-3402, and we affirm the district court's dismissal of the charges based on a violation of Montes-Mata's statutory speedy trial rights.
Is this a recurrent issue?

[Update: the state filed a PR on June 29, 2009.]

[Further update: the KSC granted the state's PR on March 31, 2010. The case will likely be argued in September or October this year.]

[Further update: on June 24, 2011, the KSC affirmed the COA decision affirming Judge Wheeler. Here is the blog entry on that decision.]

Insufficient evidenc to support accident convictions

Kevin P. Sheppard won in State v. Holm, No. 100, 943 (Kan. App. May 29, 2009), reversing a Shawnee County leaving the scene of an accident and failure to report an accident convictions. The COA construed K.S.A. 8-1602 to -1604:
A reading of these statutes appears to require remaining at the scene of a noninjury accident only if the property damaged by the damaging driver is attended by another person. Therefore, a single-car, noninjury accident does not require remaining at the scene unless the property of some other person is damaged.
Because the state only showed a single-vehicle accident the COA reversed the leaving the scene of an accident conviction. Further, the Court noted that the statute has a minimum amount of damage that must occur before an accident must be reported:
K.S.A. 2008 Supp. 8-1606 only requires reporting requirements for noninjury property accidents if there is at least $1,000 in property damage. In construing K.S.A. 2008 Supp. 8-1606 in the light most favorable to the defendant, as we are required to do, Holm's conviction cannot stand. K.S.A. 2008 Supp. 8-1606 fails to criminalize the failure to report accidents with property damage less than $1,000. The State failed to introduce evidence to document an apparent $1,000 in damage to Holm's van or the ditch where it landed, although such damage may have occurred. As a result, there was insufficient evidence to support Holm's conviction for failure to report.
This might be useful in some other contexts.

[Update: the state did not file a PR and the mandate issued on July 2, 2009.]

Monday, June 08, 2009

Lesser verdict in Hutch murder case

Here is a Hutchinson News article reporting that PD Kelly Driscoll won a verdict of second-degree murder in State v. Williams, a Reno County first-degree murder prosecution. From the article, it sounds like state-of-mind was the big issue.

Tuesday, June 02, 2009

Lots of great appellate work by defenders

We try to track and publish good cases as they come out. Not surprisingly, we are somewhat focused on ADO cases (because we are from the ADO). We try to post on other cases when we know about them, so we pretty regularly post on other defenders' published and unpublished reversals, which we can track. But it is often difficult to know when defenders have won in unpublished state appeals (because they show up as affirmed on the court web site and it doesn't show who is appellant/appellee on the case list). Because the ADO does not generally do interlocutory appeals, they can sort of fly under the radar.

I recently did a westlaw search and it turned up a lot of great trial/appellate work by defenders in these types of cases in the last few months. We posted on them (retroactively dated to around when the decision came out), but we thought we would also just list and link them here:

State v. Ramos, No. 99,544 (Jan. 16, 2009); Shawna Miller (now Jackson County CA); affirming Judge Ireland's suppression order based on improper car stop.

State v. Hilson, No. 99,421 (Feb. 6, 2009); Michael Whalen; affirming Judge Powell's grant of a new trial in a K.S.A. 60-1507 proceeding.

State v. Frischenmeyer, No. 99,975 (Feb. 13, 2009); Sam Kepfield; and State v. Swansen, No. 100,331 (Feb. 13, 2009); John Sullivan; companion cases affirming Judge Chambers' suppression order rejecting application of emergency doctrine.

State v. McFadden, No. 99,832 (Feb. 13, 2009); Shawn Lautz; affirming Judge Chambers' suppression order based on improper seizure of car.

State v. Miller, No. 99,998 (Feb. 13, 2009); Steven Jensen; affirming Judge Harth's dismissal based on statutory speedy trial.

State v. Renteria, No. 99,309 (Feb. 27, 2009); Michael Holland II; affirming Judge Rome's dismissal based on statutory speedy trial.

State v. Rodriguez, No. 100,626 (March 13, 2009); Alex McCauley; affirming Judge Bornholdt's suppression based on an improper search of a vehicle.

State v. McPherson, No. 100,072 (March 13, 2009); affirming Judge Larson's suppression order based on improper community caretaking stop.

State v. Pickerill, No. 100,189 (April 3, 2009); Charles O'Hara; affirming Judge Chambers' denial of a motion to continue.

Good job. Be sure to let us know about good decisions like this. And let us know about good orders you get in district court that aren't appealed. If you send us a .pdf, we will post it on the blog (and other defenders can cite it as persuasive authority)!

State must prove adult's inability to consent

Matthew J. Edge won in State v. Wylie, No. 99,580 (Kan. App. May 22, 2009)(unpublished), reversing a Lyon County rape conviction. The state charged Mr. Wylie with alternative counts of rape by force and rape of a woman unable to give consent due to a mental disability. The jury acquitted of rape by force and rape by inability to consent. The COA rejected the state's argument that the victim's failure to affirmatively state that she understood certain consequences of sexual intercourse was sufficient to show inability to consent:

The State argues that unlike the victim in [State v. Ice, 27 Kan. App. 2d 1, 997 P.2d 737 (2000)], C.F. never affirmatively stated that she understood certain consequences of sexual intercourse, such as AIDS or venereal disease. It contends C.F. merely agreed with the defense attorney that a woman can get pregnant if a man has sex with her. It also contends that C.F. never testified that she had the right to resist advances and say no. According to the State, this all establishes that the level of C.F.'s understanding of sexual activities was less than that of the victim in Ice.

The problem with the State's argument is that it suggests that the absence of testimony is sufficient to establish that C.F. was incapable of giving consent. The argument, in essence, transfers to Wylie the burden to prove C.F. was capable of giving consent, when legally it was the State's burden to prove C.F. was not capable of giving consent. The argument is contrary to the elementary principle that the State has the burden to prove each element of the crime charged.

The COA went on to review the record, especially's C.F.'s tesimony:
C.F.'s testimony was clear and lucid throughout her direct testimony and cross-examination. Her account was specific, and she answered the questions about the incident in completed thoughts. Her understanding of sex and its consequences is far from rudimentary.
As a result, the COA held that the state had failed to introduce sufficient evidence of inability to consent.

The COA rejected Mr. Wylie's claims that this problem infected an aggravated burglary conviction, which it affirmed.

[Update: the state filed a PR on June 15, 2009. Mr. Wylie filed a cross-PR on June 22, 2009.]

[Further update: the KSC denied both parties' PRs and the mandate issued on April 1, 2010.]

[Further update: here is an Emporia Gazette article reporting on the resentencing in this case after the appeal.]

Reversal for failure to give lessers

Rick Kittel and KU Defender Project student Julie Larson won in State v. Hawkins, No. 98,459 (Kan. App. May 22, 2009)(unpublished), getting a new trial in a Montgomery County felony theft and fleeing and eluding prosecution. The COA reversed and remanded on each count based on failure to give lesser-included offense instructions. With regard to the felony theft, although the victim testified that the value of the stolen car was between $1000 and $25000, he also admitted on cross-examination that that conclusion was based on the insurance company's estimate and that an average persom might have said it was worth "about a hundred dollars." Based on this evidence, the COA held the district court should have given a misdemeanor theft instruction. Similarly, the COA held that the district court should have given reckless driving as a lesser of felony fleeing and eluding.

[Update: the state did not file a PR and the mandate issued on June 25, 2009.]