Saturday, September 19, 2015

Restitution is limited to crimes of conviction

Kimberly Streit Vogelsberg won in State v. Miller, No. 111,573 (Kan. App. August 28, 2015), vacating a restitution order in a Sedgwick County burglary and theft prosecution. Mr. Miller argued that the $4,700 restitution order for plumbing and electrical repairs to a home did not relate to the charges for which he was convicted. The COA agreed:
Miller's theft conviction involved only theft of a machete and baby powder; he was neither charged with nor convicted of theft of copper piping or wiring. So the theft conviction cannot support the restitution award.

As for the burglary conviction, we must first review what underlying facts are established based on that conviction. As charged and pled in this case, burglary is entering into or remaining without authority in a dwelling with the intent to commit a theft there.

To the extent Miller might have damaged the property merely by entering it without authority—such as by breaking a door or a lock—restitution might be awarded for that damage because it would have been caused by the act of burglary. But merely entering or remaining in the dwelling does not by itself cause a loss of copper piping or wiring.

Even if we surmise that it was the underlying intent to commit theft of the copper wiring or plumbing that made his unauthorized entry a burglary, that would not affect the outcome here: The mere intent to steal something doesn't cause the loss. It's the act of theft that would cause the loss, and Miller was neither charged nor convicted of theft of the copper items.

The district court's factual finding that these losses were the "direct result of Mr. Miller's actions" is supported by the evidence. But these losses were not the direct result of Miller's crimes of conviction. Accordingly, the district court erred by ordering restitution for the damages caused by removal of the copper wiring and plumbing.
[Update: the state did not file a PR and the mandate issued on October 1, 2015.]

Sunday, September 13, 2015

Unpublished opinions available online!

Here is a news release from the Clerk of the Appellate Court announcing that, at least for future cases, the full text of unpublished appellate decisions will be available online.  This is a welcome change and will allow attorneys and other persons who may not have access to online opinions through a service like Westlaw to get access to unpublished opinions. Plus Kansas Defenders will be able to link to unpublished decisions!

We have seen our appellate courts more and more willing to cite unpublished decisions as persuasive, and this option should facilitate that even more. Now here's hoping that the appellate rules will be amended to dispense with the requirement of attaching unpublished opinions when cited in pleadings (at least if the unpublished decision is available on line).

Saturday, September 12, 2015

General intent required for leaving scene of injury accident

Rick Kittel won in State v. Heironimus, No. 111,749 (Kan. App. August 21, 2015), obtaining reversals of convictions for failure to report an injury accident and leaving the scene of an accident from Reno County. The conviction for failure to report an injury accident had to be reversed because the statute under which Mr. Heironimus was charged had been repealed at the time of the accident. After reviewing KSC precedent on the interaction between criminal intent and traffic offenses, the COA reversed the conviction for leaving the scene of an accident because the district court failed to instruct the jury that general criminal intent was an element:
Because a culpable mental state is required unless the definition of an offense plainly dispenses with that requirement or clearly indicates a legislative purpose to impose absolute liability and K.S.A. 2011 Supp. 8-1602 lacks both these indicators, it is clear that criminal intent must be an element of that offense. As provided by the criminal intent statutes, if a crime lacks a prescribed culpable mental state, "'intent,' 'knowledge' or 'recklessness' suffices to establish criminal responsibility." K.S.A. 2011 Supp. 21-5202(e). The State therefore needed to plead and prove that Heironimus intentionally, knowingly, or recklessly left the scene of an injury accident in violation of the requirements of K.S.A. 2011 Supp. 8-1602(a).
The COA went on to consider whether omission of the general intent requirement was harmless, but under the evidence presented concluded that "it is possible that a jury properly instructed on all elements could have found that Heironimus lacked the required mental element and acquitted him." As a result, the COA reversed and remanded that count for a new trial.

[Update: the state did not file a PR and the mandate issued on September 24, 2015.]

DNA testing statute applies to aggravated indecent liberties under Jessica's Law

Janine Cox won in State v. Kelsey, No. 111,598 (Kan. App. Aug. 21, 2015), obtaining DNA testing in a Labette County aggravated indecent liberties with a child prosecution. Mr. Kelsey argued that the Equal Protection Clause required extending K.S.A. 21-2512, which allows for DNA testing in listed types of cases to all cases involving off-grid sex crimes. The COA followed KSC precedent and agreed that testing should be available to Mr. Kelsey:
Then, more recently, in Cheeks, our Supreme Court rejected the State's suggestion that the severity of the crime was a rational basis to exclude second-degree murder from K.S.A. 21-2512 for the same reason used in Denney. Citing K.S.A. 2012 Supp. 21-6807(a), the court pointed out that even though first-degree murder was classified as an off-grid felony when the legislature enacted K.S.A. 21-2512, the legislature included rape as a crime eligible for postconviction DNA testing and that both rape and second-degree murder, both being level 1 or 2 person felonies, were "'relatively equal in severity.'" In other words, similar does not mean identical when focusing on severity levels of crimes when making this type of analysis.

We are constrained to follow the ruling in Cheeks. As the Supreme Court did in Cheeks, we find no legitimate legislative goal that is met by this distinction in severity levels of the crimes for the purpose of an equal protection analysis. Given Kansas' obvious commitment to exoneration of the innocent through DNA—both sampling and later testing—and following our Supreme Court's lead in extending K.S.A. 21-2512 rather than nullifying the statute in such instances as here, we likewise extend K.S.A. 21-2512 to include testing for those in the same situation as Kelsey.

In so holding, we clarify that, like Cheeks, we are not adding a new crime to the statute's coverage but are expanding the statute to cover a much narrower class of offenders, i.e., offenders convicted of aggravated indecent liberties with a child under the age of 14 and sentenced under Jessica's Law to the mandatory hard 25 life sentence.
Judge Atcheson concurred, but would not have applied a requirement that persons demonstrate that they are "similarly situated" as an element of the Equal Protection claim.

[Update: the state did not file a PR and the mandate issued on September 24, 2015.]

October 2015 KSC docket

Here are the criminal cases on the KSC docket for October 26-29, 2015.  These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website (here) and archived (here) if you would like to watch any of these arguments.

October 26--Monday--a.m.

State v. Milo Brown, No. 111,345 (Sedgwick)
Direct appeal; felony murder
Lydia Krebs (brief); Peter Maharry (argue)
[Affirmed; Beier; March 11, 2016]
  • Insufficient evidence of aggravated robbery
  • Insufficient evidence of underlying offense for felony murder
  • Life sentence violates "double rule"
State v. Kenneth Tafoya, No. 107,684 (Sedgwick)
Direct appeal (petition for review); DUI
Heather Cessna
[Affirmed; Stegall; June 17, 2016]
  • Improper use of prior convictions for enhancement
State v. Steven Louis, No. 110,853 (Sedgwick)
Direct appeal; felony murder
Lydia Krebs (brief); Peter Maharry (argue)
  • Failure to give lesser-included offense instructions
  • Failure to instruct that felony murder does not apply to co-felon
  • Improper prosecutorial argument
  • Life sentence violates "double rule"
State v. Felipe Hernandez, No. 108,684 (Sedgwick)
K.S.A. 21-2512 appeal
Janine Cox
[Rvd/rmd; Johnson; January 15, 2016]
  • Improper summary denial of DNA test
State v. Kevin Gray, No. 109,912 (Sedgwick)
Motion to correct illegal sentence appeal
Carl F.A. Maughan
[Affirmed; Nuss; March 18, 2016]
  • Improper summary denial of motion to correct illegal sentence

October 27--Tuesday--a.m.

State v. Gregory Keenan, No. 108,550 (Johnson)
Direct appeal (petition for review); DUI
Courtney T. Henderson
[Affirmed; Beier; August 19, 2016]
  • Failure to grant motion to suppress evidence

October 28--Wednesday--a.m.

State v. Christopher Davisson, No. 109,778 (Neosho)
Motion to withdraw plea appeal
Michelle A. Davis
[Affirmed; Nuss; March 25, 2016]
  • Whether lack of knowledge constitutes excusable neglect for untimely motion
State v. Alesia Warrior, No. 111,524 (Wyandotte)
Motion to correct illegal sentence appeal
Gerald E. Wells
[Affirmed; Beier; March 11, 2016]
  • Retroactive application of Alleyne
State v. Douglas Page, No. 106,368 (Bourbon)
Direct appeal; aggravated indecent liberties with a child
Janine Cox
[Affirmed; Biles; December 31, 2015]
  • Improper admission of evidence of prior bad acts
  • Insufficient evidence of aggravated indecent liberties with a child
  • Improper admission of SANE/SART nurse prelim testimony
  • Improper admission of pornographic photographs
State v. Charles Jones, No. 111,540 (Wyandotte)
Motion to correct illegal sentence appeal
Gerald E. Wells
[Affirmed; Rosen; December 18, 2015]
  • Failure to conduct competency hearing resulted in illegal conviction and sentence