Friday, February 24, 2012

If it's intentional, it's not reckless

Lydia Krebs won in State v. O'Rear, No. 99,487 (Kan. Feb. 17, 2012), obtaining reversal of a Wyandotte County aggravated battery conviction.  The KSC held that intentional and reckless aggravated battery are mutually exclusive:
Under the facts of this case, the State failed to establish that O'Rear committed reckless aggravated battery under K.S.A. 21-3414(a)(2)(A) because it did not prove that O'Rear recklessly caused great bodily harm to Jackson with a deadly weapon. Rather, the only evidence was that O'Rear intentionally caused the injury so that Jackson could not engage in a gun battle.
This is a follow up to previous case law that, for example, held that evidence of a completed crime is insufficient to support a conviction for attempt.

District court could have considered departure

Ryan Eddigner won in State v. Warren, No. 104,489 (Kan. App. Feb. 17, 2012), obtaining a new sentencing hearing in a Reno County trafficking prosecution.  Although the COA rejected Mr. Warren's speedy trial claim, the COA did reach his claim that the district court erred by holding that it could not grant a downward departure (in this case for a small amount of contraband).  The state argued that, because Mr. Warren received a presumptive sentence, the COA lacked jurisdiction.  The COA disagreed:
We conclude that the rationale of Cisneros is solid and that its holding has not been undercut by the  Huerta decision. In both Huerta and Dillon, the defendants sought appellate review based on a constitutional claim, while in both Cisneros and in Warren's case the defendants seek review only regarding a misinterpretation allegedly made by the district court of its own authority under the sentencing statutes. We therefore have jurisdiction to consider the limited argument made here by Warren—that the district court wrongly interpreted its statutory sentencing authority and therefore refused to consider matters before it that were potentially relevant to the sentence.
The COA also rejected the state's claim on the merits that a small amount of contraband could never be the grounds for a downward departure and, therefore, remanded to the district court for consideration of the departure request.

[Update: the state filed a PR on March 19, 2012.]

[Further update: the KSC granted the state's PR on June 27, 2013.]

[Further update: the KSC affirmed the COA decision on jurisdiction and adopted the COA reasoning as its own on July 12, 2013.  Here is a link to the decision.]

Wednesday, February 22, 2012

The exception to the rule

Here is an article stating that Elbridge "Skip" Griffy got a rare victory in a recent bench trial in a Douglas County sexual violent predator prosecution. As the article states, the State had sought to civilly commit Christopher J. Saemisch for treatment pursuant to the Kansas Sexually Violent Predator Act.

Any commitment would likely have been a life sentence, as statistics from the Secretary of SRS show that more persons have died in the program than have been released since its inception in the early 1990's. After a two-day trial (held earlier this month), Judge Michael Malone ruled that the State had failed to prove beyond a reasonable doubt that Saemisch was likely to re-offend.

Friday, February 03, 2012

No interference charge for future intereference


 William A. Wright won in State v. Meza, No. 106,006 (Kan. App. Jan. 27, 2012), affirming Judge Quint's dismissal of Finney County interference with custody charges at preliminary hearing.  The issue was whether the state showed probable cause to believe that a violation of parental rights occurred on the day in question:
By not determining whether Diaz or an appropriate family member had even tried to pick up A.M. on December 15, 2010, Smiddy failed to acquire the fundamental information necessary to know if a parenting plan violation had occurred. The district court noted that Smiddy clearly testified “he did not recall [Diaz] ever telling him that she ever attempted to pick up [A.M.] up at [Meza's] home as required in the parenting plan nor does he remember any attempts that she might have made to get the child.” The record does not clarify what happened with Meza and A.M. after Meza got A.M. from school at approximately 3:50 p.m. However, the State did not present evidence that Meza and Diaz had an agreement whereby Meza was to take A.M. to Diaz at 4:30 p.m.
The district court recognized Diaz' joint custody status and correctly pointed out Meza, as the residential parent, retained 100 percent physical custody of A.M. unless Diaz exercised her right under paragraph 4(c) of the parenting plan to pick up A.M. for a scheduled visit. Logically then, if Diaz did not try to exercise her right, there is no probable cause to believe that A.M. was taken away from Diaz.
Clearly, the next day, when Smiddy talked with and later arrested Diaz at the T–Bone address, A.M. was not in the lawful custody of Diaz according to the Finney District Court order. This means no violation of the statute could have been occurring on that day and there were no grounds to arrest Diaz at that point.

. . . .
In fact, the record indicates Smiddy arrested Meza because Smiddy believed Meza would commit a future criminal offense under K.S.A. 21-3422,  not for Meza's specific actions on December 15, 2010. Smiddy testified:
“I don't know when [Meza] was specifically planning on leaving. I don't know if [Meza] was actually planning on leaving, but based on the statements [Meza] provided, yeah, I had to assume that [Meza] was planning to leave the city with the child in order to prevent Ms. Diaz ... from having her appropriate parenting time.”
Meza's intentions to leave Garden City or move sometime in the future have no bearing on whether there was sufficient probable cause that Meza committed a crime under K.S.A. 21-3422 on December 15, 2010.
[Update:  the state did not file a PR and the mandate issued on March 1, 2012.]