Michael Buser

The case involved the State of Kansas appealing a district court order that suppressed a large quantity of marijuana found in an RV driven by Trever Rhodes Wendler after a traffic stop on Interstate 70 for following another vehicle too closely. The Court of Appeals affirmed the suppression and the resulting dismissal of drug charges, holding that the stop was unlawfully extended well beyond the time needed to address the traffic violation. The officer had no reasonable suspicion of drug activity during the initial investigation, instead using stalling tactics and unrelated questioning while awaiting backup. Wendler’s later consent to further questions and a search of the RV was tainted by this prolonged illegal detention, as there were no intervening circumstances to purge the illegality under the totality of the circumstances.

criminal lawprocedure

In State v. Stawski, Thomas Joseph Stawski Jr. was convicted of aggravated intimidation of a witness and criminal threat after he anonymously mailed his Black neighbor, George Carter (a Kansas National Guard member), and Carter’s family materials featuring images of lynched Black soldiers with “KKK” handwritten on them, amid ongoing disputes over Stawski’s dogs. The district court granted the State’s motion for an upward dispositional departure from the presumptive probation sentences to prison terms, based on the statutory aggravating factor that the offenses were motivated in whole or in part by the victims’ race or color. On appeal, the Kansas Court of Appeals affirmed, holding that substantial competent evidence supported the racial motivation finding because Stawski deliberately selected imagery and references uniquely tied to anti-Black violence and the KKK’s history. The court further concluded that this motivation, combined with the severe emotional distress inflicted on the victims and Stawski’s failure to acknowledge the racist context, provided substantial and compelling reasons to depart from probation.

criminal lawcivil rights

In the case In re Marriage of Hohmann, the issue was whether lump-sum Social Security disability payments made directly to the children of a disabled father could be applied to reduce the father's past-due child support obligations for the months those payments covered. The Kansas Court of Appeals affirmed the district court's ruling that such payments could be credited against the father's arrearages for the specific period from June to December 2008, but not against earlier debts or with any excess applied retroactively. The court reasoned that these benefits are earned by the parent through prior contributions, so crediting them for the corresponding time period fulfills the support obligation without regard to the payment source, consistent with prior Kansas cases and the majority of other states, while treating any overpayment as a gratuity to the child.

family law

In Craig v. Val Energy, Inc., a driller employed by Val Energy sought workers' compensation benefits after being injured in a one-vehicle accident while driving home from a temporary shop assignment, where he had been fixing equipment after his usual oil rig broke down. Craig's job required him to pick up and transport crew members in his personal vehicle to and from work sites, for which the company reimbursed his mileage, provided per diem pay, and conditioned his hiring on his ability to drive the crew. The Workers Compensation Board ruled that his injury arose out of and in the course of employment under the inherent travel exception to the going-and-coming rule in K.S.A. 2010 Supp. 44-508(f), rejecting the employer's argument that the commute was non-compensable. The Kansas Court of Appeals affirmed, holding that the Board correctly applied the law because Craig's travel was an integral job duty providing mutual benefit to the employer, not a standard commute subject to the general rule barring recovery for injuries en route to or from work.

labor & employment

In State v. Williams, the Kansas Court of Appeals addressed how to apply four prior felony theft convictions when sentencing Brian Williams for new theft offenses under K.S.A. 2009 Supp. 21-4704(p) and K.S.A. 21-4710(d). The district court had used three of the priors to enhance Williams’ sentence from presumed probation to presumed prison and counted the fourth in his criminal-history score, which raised his presumptive prison term. Williams argued that the “three or more” language meant all his priors were used for enhancement and thus unavailable for the criminal-history calculation. The court affirmed the sentence, holding that only the minimum number of convictions needed to trigger enhancement are excluded from criminal history, while any excess convictions may be scored, consistent with interpretations of similar Kansas sentencing statutes that seek to account for all prior convictions unless they are specifically used for another purpose.

criminal law

In State v. Enriquez, Rodolfo Enriquez appealed his convictions for conspiracy to commit first-degree murder and possession of cocaine, arguing that the trial court erred by instructing the jury that it could consider his prior crimes or bad acts when deciding the cocaine charge, by failing to give a limiting instruction on that evidence, and by omitting a specific unanimity instruction on the overt acts supporting the conspiracy. The Kansas Court of Appeals held that the prior-crimes instruction was erroneous and that a limiting instruction should have been given, but concluded those errors were harmless. It further ruled that a specific unanimity instruction was unnecessary because the various overt acts alleged in a conspiracy case constitute alternative means rather than multiple acts, the record contained substantial evidence supporting each means, and the jury had received a general unanimity instruction. The court therefore affirmed the convictions.

criminal lawprocedure

This case was a class action brought by Freebird, Inc. against Cimarex Energy Co. alleging underpayment of natural gas royalties through improper deductions; the parties reached a $3.45 million settlement to be paid into a common fund. Chesapeake Energy, a class member whose recovery was estimated at about $500, was the sole objector and appealed the district court’s approval of a one-third contingent attorney fee for class counsel and a 1% incentive award for the class representative. The Court of Appeals affirmed, holding that the district court did not abuse its discretion because it provided adequate notice and an opportunity to be heard, reviewed supporting affidavits and billing records (including in camera), and applied established factors for evaluating common-fund fee and incentive awards. The court noted the litigation’s complexity, the risk involved, the class representative’s substantial contribution (up to 700 hours), and the fact that even a lodestar cross-check supported the roughly $34,500 incentive amount as reasonable.

business & regulatoryprocedure

In State v. Stevenson, Robert Stevenson was pulled over for a traffic violation, after which officers detected a very strong odor of alcohol emanating from inside his vehicle. Although field sobriety tests showed he was not intoxicated and the odor persisted after he exited, officers searched the car without a warrant or consent, finding an open bottle of wine along with drug paraphernalia and methamphetamine, which led to his conviction for possession of methamphetamine. Stevenson moved to suppress the evidence, arguing the odor alone did not establish probable cause for the search. The Kansas Court of Appeals affirmed the denial of the motion, holding that under the totality of circumstances the unusually strong odor—after excluding the driver as its source—provided probable cause to believe an open container violation existed inside the vehicle. The majority reasoned that the vehicle's mobility supplied the exigent circumstances needed to justify the warrantless search.

criminal lawprocedure

The case involved Irvin and Carolyn Crone's lawsuit to quiet title to 48.5 acres of land in Barton County, Kansas, which they claimed by adverse possession against the record owners, Fred Nuss and the Hott Trust. The Crones had used the land since purchasing adjacent property in 1988 by cutting and baling Johnson grass, disking the soil, planting Sudan grass, and erecting barriers, but they admitted knowing they did not own it and sought to prove a knowingly adverse claim for the required 15 years under K.S.A. 60-503. The trial court ruled that the Crones failed to meet their burden of proving the elements of adverse possession by a preponderance of the evidence and denied their post-trial motion to introduce additional documents challenging the defendants' title. On appeal, the Kansas Court of Appeals affirmed, holding that the trial court did not disregard evidence or abuse its discretion, that a quiet-title plaintiff must establish the strength of their own title rather than attack the defendants' ownership, and that the new evidence would not have altered the outcome.

property

This case involved the suspension of Bryce Katz's driving privileges by the Kansas Department of Revenue after a 2007 DUI arrest stemming from a car accident outside a bar, where a breath test taken about 2 hours and 45 minutes later showed an alcohol concentration of .203. The district court reversed the suspension, concluding that Katz had consumed additional alcohol after driving, meaning the test result did not reflect his level while operating the vehicle, and that the order was unsupported by substantial evidence and violated substantive due process. On appeal by the KDR, the Court of Appeals reversed the district court and remanded to reinstate the suspension, ruling that the statutes permitted suspension based on the test result within the two-hour window and that the record showed no substantive due process violation, as the agency had properly applied the statutory factors without arbitrary action or infringement on a fundamental liberty interest.

criminal lawprocedure

In State v. Reed, the defendant appealed his convictions for aggravated robbery, aggravated assault, and obstruction of official duty arising from a late-night armed robbery at a Kansas mall, where the victim identified Reed shortly after the incident during a one-person show-up while Reed was handcuffed in a patrol car. The court considered challenges to the denial of a motion to suppress the eyewitness identification, the refusal to give a unanimity instruction, and the use of a deadlocked jury instruction. The Court of Appeals affirmed the convictions, holding that the show-up identification procedure was not unnecessarily suggestive under the totality of the circumstances and that the identification was reliable based on the victim's opportunity to observe the assailant, the short time between the crime and the identification, and other factors. The court also found no error in the jury instructions that would require reversal.

criminal lawprocedure

In State v. Wilson, the defendant appealed his convictions for burglary of a non-dwelling and criminal damage to property, claiming reversible error from the trial court's Allen-type jury instruction and insufficient evidence of intent to commit theft for the burglary charge. The Kansas Court of Appeals affirmed the convictions after reviewing the jury instruction under the proper legal standard and assessing the evidence in the light most favorable to the prosecution. The court determined that the modified PIK Crim.3d 68.12 instruction fairly stated the law without misleading the jury. On sufficiency, the court concluded that intent could be inferred from circumstantial evidence such as the after-hours entry by breaking a window into a closed business, the defendant's actions in exiting through another broken window upon seeing police, and his possession of a shop rag from the premises.

criminal lawprocedure

In this post-divorce case, Matthew Jones filed a motion to modify his child support obligation, but did not initially submit the required domestic relations affidavit or child support worksheet. The district court granted the modification with retroactive effect to April 1, 2009, one month after the motion was filed. Stacy Jones appealed, arguing that under Supreme Court Rule 139 the motion was not effectively filed until the affidavit and worksheet accompanied it, so any retroactive modification could begin only one month after those documents were submitted. The Court of Appeals affirmed, interpreting K.S.A. 2009 Supp. 60-1610(a)(1) to allow retroactivity from one month after the motion filing alone, because the affidavit rules are evidentiary rather than jurisdictional.

family lawprocedure

In State v. Weilert, the defendant was charged with felony DUI after crashing his motorcycle; he refused a law-enforcement blood test but later consented to a hospital blood draw for medical treatment and told medical staff he had consumed six alcoholic drinks. The district court excluded both the blood-test results and the statements, ruling that the implied-consent statute barred use of the medical test, that federal law prohibited disclosure, and that the Kansas statute eliminating the physician-patient privilege in felony DUI cases was unconstitutional. On the State’s interlocutory appeal, the Kansas Court of Appeals reversed, holding that the implied-consent law does not restrict admission of independently obtained medical test results, that no federal privacy law barred disclosure, and that the legislature validly limited the privilege in such cases. The court concluded that the evidence was relevant and that no statute precluded its admission under K.S.A. 60-407(f) and K.S.A. 60-427. The case was remanded for further proceedings.

criminal lawprocedure

In State v. Alexander, the defendant was convicted of felony aggravated assault and misdemeanor criminal restraint, placed on probation, and then violated its terms by using drugs and failing to report; after a warrant was issued in November 2005, he remained at large until his arrest in October 2007. Alexander moved to dismiss the probation-revocation proceeding, arguing that the State's two-year delay in locating and arresting him violated due process and waived the State's right to proceed. The district court denied the motion, revoked probation, and imposed the underlying sentence; on appeal, the court affirmed, holding that the State's efforts—including entering the warrant in a national database, contacting out-of-state law enforcement, and following tips—were reasonable under the circumstances and did not constitute unreasonable delay. The court also dismissed Alexander's challenge to his original sentence for lack of appellate jurisdiction. The topics are criminal law and procedure.

criminal lawprocedure

This case arose from the sale of a residence where buyers alleged that the seller failed to disclose known water leaks and related repairs, leading to claims of fraud, negligent misrepresentation, and breach of contract against the seller, plus negligent misrepresentation and Kansas Consumer Protection Act violations against the seller's real estate agent and firm. The district court granted summary judgment to all defendants on the claims and denied the buyers' motion to amend their complaint to add punitive damages. On appeal, the court reversed summary judgment for the seller, holding that the evidence viewed in the light most favorable to the buyers created genuine issues of material fact on the disclosure and contract issues, but affirmed summary judgment for the agents because they lacked knowledge of the leaks and affirmed the denial of the punitive damages amendment as within the trial court's discretion.

propertyproceduretorts & liability

The case involved Raul J. Aguilar, who was arrested for DUI and driving while suspended; officers found a substance on him that a lab later identified as marijuana, though Aguilar faced no drug-related charges and pleaded guilty only to the two traffic offenses. The district court still imposed a $400 forensic laboratory fee for the marijuana testing under K.S.A. 2008 Supp. 28-176(a). On appeal, the court reversed and remanded with instructions to vacate the fee. It held that the statute permits the fee only when laboratory services are rendered in connection with the defendant's case, which here required a link to a charged offense, and the testing was unrelated to the alcohol-based DUI conviction.

criminal lawprocedure

This case involved an inverse condemnation claim by the owners of land (Lessors) leased to a commercial tenant against the City of Wichita, after the tenant granted the City a permanent easement over about 8,000 square feet of the property for roadway and utility improvements without the owners' consent. The district court granted summary judgment to the City, reasoning that no taking occurred because the Lessors would not regain possession until the lease expired in 2058 and the easement would then terminate. On appeal, the Kansas Court of Appeals reversed, holding that the City's physical occupation of the land with permanent public improvements constituted a taking of the Lessors' property interest under the Fifth Amendment (applied to the states via the Fourteenth) and Kansas statutes, regardless of the lease term. The court remanded the case for entry of partial summary judgment for the Lessors and a determination of damages, emphasizing that the duration of the occupation affects only the amount of compensation, not whether a taking has occurred.

propertycivil rights

The case involved David Moore's conviction for an aggravated weapons violation under Kansas statutes for carrying a concealed 'dangerous knife'—a 3.5-inch serrated blade disguised as a hair comb—within five years of a prior felony conviction. Moore challenged the conviction on three grounds: that the item qualified as an exempt 'ordinary pocket knife,' that the term 'dangerous knife' was unconstitutionally vague, and that the knife was not dangerous. The court affirmed the conviction, holding that the knife did not meet the statutory pocket-knife exception due to its design and features, that the statute provided sufficient context to avoid vagueness, and that the blade's capacity to cause great bodily harm made it dangerous under the law.

criminal law

This case involves a workers' compensation claim where claimant John W. Higgins, who was receiving benefits for a work-related back injury, applied for postaward medical treatment and sought to recover fees charged by physicians for their evidentiary deposition testimony as costs under K.S.A.2006 Supp. 44-510k(c). The administrative law judge and the Workers Compensation Board denied the request for expert fees, awarding only traditional statutory witness fees, and the Court of Appeals affirmed. The majority held that the statute's definition of costs, interpreted under the doctrine of operative construction, does not authorize expert witness fees, consistent with precedents under K.S.A. 60-2003 and related cases that limit witness fees to the standard per diem amount. The court noted the statute's language parallels civil procedure provisions that exclude such expert fees absent specific authorization.

labor & employmentprocedure