ADVERTISEMENTS

State v. Preston, 41 Kan. App. 2d 981, 207 P.3d 1081 (May 22, 2009)

Issues presented:

1. Whether defendant's Fourth Amendment rights were violated by pat-down search.

2. Whether search of passenger compartment of defendant's car was supported by reasonable suspicion that defendant was dangerous and could gain control of a weapon.

3. Whether the State's use of defendant's refusal to consent to a search during closing argument violated defendant's right to fair trial and Fifth Amendment right against self-incrimination.

-and whether an objection is required to raise issue for first time on appeal

4. Whether defendant's prior conviction for conspiracy to possess with intent to distribute 50g+ of crack cocaine was used for propensity purposes in violation of K.S.A. 60-455.

5. Cunningham v. California issue (applying Apprendi to aggravating facts used to sentence defendant to top sentence of presumptive grid box)

State v. Gaona, 41 Kan. App. 2d 1064, 208 P.3d 308 (May 29, 2009)

Issues presented:

1. Whether court erred in admitting the testimony of the "Child Abuse Specialist" regarding the typical behavior of sexually abused children.

2. Failure to instruct on lesser offense of attempted aggravated criminal sodomy

3. Whether refusal to admit defendant's medical records violated his right to present a defense.

4. Whether admission of evidence that defendant previously watched pornographic videos with alleged victim violated K.S.A. 60-455.

5. Whether defendant's right to a fair trial was violated by admission of alleged victim's prior consistent statements prior to her in-court testimony

6. Cumulative error

7. Cunningham v. California issue (applying Apprendi to aggravating facts used to sentence defendant to top sentence of presumptive grid box)

State v. Dean, 42 Kan. App. 2d 32, 208 P.3d 343 (June 5, 2009)

Issues presented:

1. Sufficiency of evidence of convictions of possession of marijuana, possession of marijuana without a tax stamp, possession of drug paraphernalia, and endangering a child.

2. Whether defendant's statutory right to a speedy trial was violated when the district court, citing K.S.A. 22-3402(5)(d), continued the defendant's trial date because of civil cases that were pending for trial.

3. Whether defendant's right to a unanimous jury verdict was violated for defendant's three convictions of endangering a child when jury was instructed on the alternative means of "caus[ing]" or "permit[ting]" a child to be put in danger, but when substantial evidence did not support an instruction that defendant permitted the children to be put in danger.

4. Whether K.S.A. 65-4152(a)(2) & (a)(3) proscribe identical offenses, thus requiring the defendant to be sentenced under the lesser penalty in K.S.A. 65-4152(a)(2).

State v. Sprung, No. 99,704 (Kan. App. June 5, 2009) (unpublished)

Issues presented:

1. Multiplicity question: whether defendant can be convicted of two counts of aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A) (prohibiting "[a]ny lewd fondling or touching of the person of either the child or the offender..."), for one alleged sexual incident, when one count is based upon defendant's alleged touching of "the child" and one count is based on the defendant's alleged touching "the offender" (himself).

2. Prosecutorial misconduct - based on prosecutor's injection of their personal opinion of credibility of witnesses

3. Whether the district court erred in denying a psychological evaluation of the alleged victim

4. Cunningham v. California issue (applying Apprendi to aggravating facts used to sentence defendant to top sentence of presumptive grid box)

State v. McKnight, 42 Kan. App. 2d 945, 219 P.3d 825 (November 13, 2009)

Issue presented:

Whether K.S.A. 22-3716(b) gives a district court authority to modify a term of postrelease supervision at a probation revocation hearing as "any lesser sentence" of the sentence originally imposed.

State v. Miller, No. 100,247 (Kan. App. June 5, 2009) (unpublished)

Issues presented:

1. Whether the jury instructions were clearly erroneous when the jury was instructed that it should find the defendant not guilty of second-degree murder before considering the lesser offense of voluntary manslaughter, even though the jury was also instructed that it should consider the offenses of second-degree murder and voluntary manslaughter simultaneously.

2. Cunningham v. California issue (applying Apprendi to aggravating facts used to sentence defendant to top sentence of presumptive grid box)

3. Ivory issue (applying Apprendi to facts of criminal history)

State v. Marquis, No. 100,423 (Kan. App. June 5, 2009) (unpublished)

Issue presented:

Whether defendant's Sixth Amendment right to confront witnesses applies at a probation revocation hearing.

State v. McDaniel, No. 101,634 (Kan. App. October 2, 2009) (unpublished)

Issue presented:

Whether the district court had jurisdiction to order restitution after a lawful sentence was imposed at the sentencing hearing.

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