Saturday, November 28, 2015

Dispositional departure was a "no brainer"

Janine Cox won in State v. Snyder, No. 112,044 (Kan. App. Nov. 6, 2015)(unpublished), affirming Judge Fleming's downward dispositional departure sentence in a Labette County drug prosecution. Judge Fleming adopted several mitigating factors asserted in Mr. Snyder's departure motion, including appropriate action since charging, no criminal history, family support, and taking responsibility for his actions. The COA held that evidence supported all of these factors, even if contested by the state. The COA did acknowledge that a lack of criminal history, by itself, might to support a departure, but that it could be considered along with other mitigating factors, as was done in this case. Ultimately, the COA affirmed:
Here, the district court found the decision to grant the departure was a "no brainer" because "prison doesn't make people better citizens, generally, and it's punishment for the sake of punishment." The district court considered the factors in light of the purposes of the KSGA—(1) reduce prison overcrowding, (2) protect public safety, and (3) standardize sentences so similarly situated offenders are treated the same in order to reduce the effects of racial or geographic bias. The district court found Snyder was amenable to probation and was not a threat to public safety based on his lack of criminal history, his good behavior while the case was pending, the fact he took responsibility for his actions, and his family support. Taking all of these factors into consideration, we find the district court did not abuse its discretion when it granted Snyder's departure motion.
[Update: the state did not file a PR and the mandate issued on December 14, 2015.]

Saturday, November 21, 2015

Social guest generally not subject to search warrant of premises

Tracey T. Beverlin won in State v. Hunter, No. 112,963 (Kan. App. Oct. 30, 2015)(unpublished), summarily affirming Judge Meisenheimer's suppression order in a Pratt County drug prosecution. Officers had a search warrant for a residence and when they executed that warrant, officers met Ms. Hunter at the front door. Ms. Hunter provided her ID to the officers from her purse and then indicated she wanted to leave. Officers detained her telling her she was subject to the search warrant. Officers conducted nonconsensual search of Ms. Hunter's purse and found amphetamines and marijuana.

At trial, Ms. Hunter argued that the officer was not authorized to search her purse pursuant to the warrant because there was insufficient evidence of a relationship between her and the residence. The district court agreed and the COA affirmed. The parties agreed that a social guest at a premises that is subject to a search warrant is not generally subject to a search, unless circumstances suggest a relationship between the person and the illegal activities described in the warrant. But the COA held that the district court's finding that the state had failed to prove such circumstances was supported:
In any event, as the district court found, there was no evidence establishing a relationship. The search warrant application was based on Reyna's report to McCarley that he previously had smoked marijuana and methamphetamine with Roberts at the residence on Brendon Court. Specifically, Reyna told McCarley that on the evening of December 14, 2013, Reyna was at the residence and observed Roberts crush up some type of prescription pills, mix them into a solution, and use a needle to inject the solution into his body. Reyna told McCarley that Roberts did not have a prescription for these pills. As the district court found, there was absolutely no evidence connecting Hunter with the illegal activities described in the application for the search warrant. The district court found this lack of connection to be especially apparent because it had been more than 2 days from the time that Reyna had observed Roberts crushing up the prescription pills to the time that Hunter's purse was searched without her consent.
[Update: the state did not file a PR and the mandate issued on December 14, 2015.]

Trooper's repeated failure to appear justified dismissal with prejudice

In State v. Stufflebean, No. 112,873 (Kan. App. Oct. 30, 2015)(unpublished), the COA affirmed a magistrate judge's dismissal of a traffic citation with prejudice after a Highway Patrol Trooper failed to appear for the bench trial. Recognizing that dismissal with prejudice is an extreme remedy, the COA still upheld the magistrate judge's action:
Here, the record on appeal reflects that the magistrate judge dismissed the charge against Stufflebean with prejudice because the trooper who issued the traffic citation failed to attend the bench trial. While there is no transcript of the original bench trial in the record, the district judge affirmed the magistrate judge's dismissal in part because Stufflebean had driven over an hour each way to appear in the Jefferson County District Court two previous times—once for the first appearance and once for the bench trial at which Moomau was absent.

It was not unreasonable for the magistrate judge to find that requiring Stufflebean to appear in court yet again was prejudicial to him, especially after he needlessly traveled to Jefferson County at least one other time due to the trooper's failure to attend the bench trial. It is also reasonable not to require a defendant to travel multiple times in order to resolve a traffic infraction when the issuing officer failed to attend the bench trial with no excuse. Also significantly, the magistrate judge's decision did not punish the public and it did not create windfall for Stufflebean. The charge against Stufflebean was not for a violent or especially dangerous offense, meaning he was not an appreciable danger to the public. Stufflebean at most faced a fine if found guilty, meaning he did not gain a substantial windfall through the dismissal when compared to other hypothetical defendants facing prison sentences or large restitution obligations.
[Update: the state did not file a PR and the mandate issued on Decvember 14, 2015.]

Saturday, November 14, 2015

Drinking and walking is not necessarily a crime

Donald R. Snapp won in State v. Crane, No. 112,494 (Kan. App. Oct. 23, 2015)(unpublished), obtaining a suppression order in a McPherson County drug prosecution. Mr. Crane was arrested for crossing the street as a pedestrian under the influence. The COA held that Mr. Crane was not illegally crossing a neighborhood street and that officers' brief encounter with him on another street did not establish probable cause of a violation of K.S.A. 8-1543, which states: "A pedestrian who is under the influence of alcohol or any drug to a degree which renders such pedestrian a hazard shall not walk or be upon a highway except on a sidewalk."

The COA first held that, contrary to the district court's holding, Mr. Crane could not have been violating other pedestrian laws (like failing to cross at a crosswalk). Finally, the COA observed that simply consuming alcohol does not equate with being a hazard:
While it is clear from the record Crane had consumed alcohol, what is not clear is that he was intoxicated and a hazard in crossing the street to his friend's house. He crossed the street in a legal fashion, he had successfully crossed one street before the officers moved in to arrest him, he was able to walk and communicate successfully, and there were no cars approaching from either direction before or after Crane crossed the street. When the totality of the circumstances is considered, no objectively reasonable police officer would have had probable cause to arrest Crane for being a pedestrian under the influence. All evidence of criminal wrongdoing obtained after Crane's unlawful
seizure was therefore tainted.
[Update: the state did not file a PR and the mandate issued on December 28, 2015.]

No good-faith exception for illegal cell phone searches

Timothy J. Grillot won in State v. Jones, No. 113,397 (Kan. App. Oct. 23, 2015)(unpublished), affirming Judge Fleming's suppression order in a Labette County prosecution. The state conceded that a cell-phone search was illegal pursuant to Riley v. California, but argued that the evidence obtained as a result should still be admitted under the good-faith exception. The COA noted that there was only one federal court case and one non-final Kansas COA case upholding cell-phone searches incident to arrest. As a result, the COA agreed with Judge Fleming that the good-faith exception did not apply:
On the facts presented in the defendant's motion to suppress evidence (and not challenged through evidence by the State), Jones was a passenger in a car involved in a brief police chase, and officers arrested him when he got out of the car. An officer then found cash in Jones' pants pocket and searched data on Jones' cell phone to see whether the cash might be tied to illegal activity. The officer had no warrant, and the State presented no testimony or argument that the officer needed to examine any data on the cell phone to protect anyone's safety. On these facts, the district court properly granted the defendant's motion.
[Update: the state did not file a PR and the mandate issued on December 28, 2015.]

Sunday, November 08, 2015

Insufficient evidence of theft by deception

Randall Hodgkinson won in Statev. Laborde, No. 107,872 (Kan. Nov. 6, 2015), reversing a Clay County conviction for theft by deception for insufficient evidence. The KSC held that “[t]he State did not produce evidence proving one of the necessary elements of theft by deception—that Laborde obtained control over Price's property by means of a false statement or representation that deceived Price and on which he relied.

The KSC explained the poof needed to convict of theft:
In relevant part, K.S.A. 21–3701 defines theft:
      “(a) Theft is any of the following acts done with intent to permanently deprive      the  owner permanently of the possession, use or benefit of the owner's property:
‘(1) Obtaining or exerting unauthorized control over property;
‘(2) obtaining by deception control over property;’ ”
Theft by deception sets out different elements that the State must prove than theft by unauthorized control. Theft by deception demands a specific kind of proof from the State. The statutory language demonstrates clearly that the legislature intended to require the State to prove that the intended victim “was actually deceived and actually relied upon the false representation in order for the defendant to be found guilty of theft by deception.” State v. Finch, 223 Kan. 398, 402, 573 P.2d 1048 (1978). The statutory phrase “by deception” indicates an agency or instrumentality as a causative factor. The State must prove that the defendant “obtained control over another's property by means of a false statement or representation.” 223 Kan. at 404, 573 P.2d 1048.
The facts presented at trial did not prove that Ms. Laborde “obtained control over another's property by means of a false statement or representation.” Rather, the evidence, construed in favor of the State, only showed that Ms. Laborde “exert[ed] unauthorized control over property” (by allegedly using deception to prevent the alleged victim from getting his property back from her possession). This was not sufficient to convict of theft by deception.
In reversing the conviction, the KSC described the procedural history of the case as follows:
In this peculiar case, the State brought charges against the defendant asserting elements under one statutory theory of theft [theft by deception], but the jury convicted the defendant under instructions setting out a different theory of theft [theft by unauthorized control]. The Court of Appeals found that the conviction was the result of error invited by both parties and affirmed on that basis. We conclude, however, that the parties never raised on appeal the discrepancy between the charge and the instruction and the case must be analyzed on the terms that the parties argued it, as a matter solely of sufficiency of the evidence. Considered from that perspective, we disagree with the conclusion that the Court of Appeals reached and reverse. [(brackets added by blogger)].
Thus, the KSC held that the sufficiency of the evidence claim was measured by the crime charged in the complaint or information and not necessary the language in the instruction that went to the jury.