8 Tips On How To Avoid A Probation Violation Or A Diversion Violation

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After you’ve been doing criminal defense work for over 17 years, you start to notice patterns.  You see certain things repeat themselves over and over.  So I wanted to say a few words here about one of the most commonly encountered defense issues.

And that is:  how to avoid getting violated on probation or diversion.

Let’s say you’ve already been placed on probation or diversion.  You want to be successful.  You want to complete it and be done with it.  I get that.

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A Step-By-Step Guide On How To Solve A Legal Problem

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Life can take unexpected twists and turns.  We can have all sorts of problems.  Some of them are medical problems.  Some of them are accounting problems.  Some of them are family or relationship problems.

And some of them are legal problems.

But we don’t often find many step-by-step guides on how to solve legal problems.  Why is this?  Well, there are a lot of reasons:  not diagnosing the problem, being misled by the media, or not acting fast enough.

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Entrapment In Computer Sex Enticement Cases

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Cases involving law enforcement officers posing as juveniles online are common.  A typical scenario is found in the recent case of State v. Anderson (WD77202) from the Western District of Missouri Court of Appeals, which was decided in May 2015.  In the Anderson case, a law enforcement officer created a female online profile for a dating site, using a profile with the name Kaitlyn that alleged “she” was 19 years old.  The profile was then posted to the site.

Many of these computer “decoy” cases involve scenarios where a law enforcement officer is purporting to be a minor.  The issue then often becomes some version of this question:  did the defendant actively participate in the exchange, or was he tricked into doing something that he might not have done otherwise?

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The Good Faith Exception To The Exclusionary Rule Saves A Deficient Missouri Search Warrant

When will a search warrant be supported by probable cause?  What is the “exclusionary rule”?  And what is the “good faith exception” to the exclusionary rule?  These were some of the questions considered by the Missouri Court of Appeals last month (February 2015) in the case of State v. Gregory Robinson Sr, (WD 77664), which came out of Randolph County, Missouri.

The Defendant (Robinson) was charged with manufacturing drugs.  At his trial, his attorney filed a motion to suppress the evidence seized in the case, claiming that the search warrant used by the police officers did not show sufficient “probable cause” to search the premises.  He won his motion, and the evidence was suppressed.  The State, however, appealed.

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“Jury Box” Or “Hot Box” Jury Selection In Kansas Felony Criminal Trials

Does it matter how a jury is selected in a criminal case?  Can the method used in seating a jury cause reversible error?  According to the Kansas Court of Appeals, the answer is yes.  A recent case discussed these issues and how they would be applied.  The case was State v. Crabb, decided in February of this year (KS Court of Appeals No. 110,673).

In the Crabb case, defendant Christopher Crabb appealed his conviction of one count of interference with law enforcement. Crabb claims the district court committed reversible error by using the so-called “hot-box” method of jury selection over Crabb’s objection instead of using the statutory method of jury selection set forth in K.S.A. 22-3411a.  He also argued that the district court erred in instructing the jury and that he was denied a fair trial based on prosecutorial misconduct and cumulative error.

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Aggravated Battery Conviction Does Not Require Intention Of Resulting Harm

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In January of this year, the Kansas Supreme Court published an opinion that clarified its position on the type of proof needed to sustain a conviction for aggravated battery.  The case was State v. Hobbs  (Docket No. 107,667).  To sustain an aggravated battery conviction, is the prosecutor required to prove that the defendant intended the consequences of his act, or just the act itself?  It is a question that is constantly present in these cases.

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For A DUI Stop, Police Need “Reasonable Suspicion” Of Criminal Activity

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Every now and then, a DUI decision comes along that sums up a very important point of law. One of these decisions came down in January 2015 from the Missouri Court of Appeals for the Western District.

If the police wish to stop a motorist for a suspected DUI, they must have a reasonable suspicion of criminal activity.  Stops based on mere curiosity, or based on pretexts, are not legally valid.  This was the rule that the Missouri Court of Appeals for the Western District recently (2014) reminded the legal community of.  The case was State v. Cardwell (WD76791), on appeal from Cole County, Missouri.  After a bench trial, Mr. Cardwell was convicted of driving while intoxicated under Section 577.010 of RSMo.  On appeal he argued that the trial court should have granted his motion to suppress evidence. The Court of Appeals agreed with Cardwell and reversed the conviction.

Cardwell had filed a motion to suppress evidence during the case.  He argued that, because the officer who stopped him did not have reasonable suspicion or probable cause to do so, all evidence obtained thereafter should be suppressed. His motion was denied, and he was convicted.  When the officer initiated the stop, Cardwell argued, he did not have reasonable suspicion or probable cause to believe that Cardwell’s behavior suggested that he may be involved in illegal activity.  Thus the officer’s stop and seizure of Cardwell was unreasonable, and evidence obtained thereafter should have been suppressed.

The officer testified that when he first stopped Cardwell, he observed Cardwell to have watery, bloodshot eyes, could smell the odor of alcohol from his car, and Cardwell admitted to the officer that he had been drinking.  But the real issue, the Court found, was whether Cardwell should have been stopped in the first place.

The testimony of the police officer was the heart of the case.  The officer testified that on September 16, 2011, he was on his way to assist another officer, at approximately 1:00 in the morning, when he observed a vehicle in front of him traveling “very slow.”  The road was  gravel and “not a very wide road.” He testified that he quickly caught up with the vehicle, which was traveling in front of him and going in the same direction. The officer testified that the vehicle then stopped in the right hand lane and the driver motioned for him to go around and left him room to do so.

The officer said he instead chose to “check on the driver, make sure everything was okay[,]” and so he turned his lights on “so that he would know that it was a deputy behind him and that it wasn’t someone that was possibly a threat to him and also as a warning beacon to anyone else that would come up behind us or a beacon for other deputies should I need help.” At that point, the officer testified that he contacted the driver and had him show his driver’s license. The officer said although Cardwell then told him he was fine, he could smell alcohol coming from inside the vehicle.

The officer said he had not observed the vehicle commit any traffic offense. The officer testified that most people do not drive fifty-five miles per hour on a gravel road, indicating his perspective that driving slower than that was not “unusual conduct which [would] lead[] him reasonably to conclude in light of his experience that criminal activity may be afoot, as required for the existence of reasonable suspicion.

Cardwell was detained when the officer activated his emergency lights. At that moment, the Court noted, a reasonable person would have believed he was not free to leave.  From looking at the entire circumstances, the Court found nothing to indicate that the detention of Cardwell was justified in the first place.  In other words, the officer had no reason to believe that criminal activity was in progress or had occurred. The detention and the arrest never should have occurred.

The Court summed up its position with this brief but succinct expression of the law in this area.  It is worth quoting here:

However, “whether an officer lacked reasonable suspicion ‘turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time and not on the officer’s actual state of mind at the time the challenged action was taken.’” Id. (quoting Maryland v. Macon, 472 U.S. 463, 470–71 (1985)) (emphasis added). An objective assessment of the events leading to Sergeant Huffman’s [the officer conducting the stop] stop of Cardwell fails to reveal any specific and articulable facts and rational inferences therefrom that would reasonably warrant the stop. Driving slowly on a rural gravel road in the early morning, coming to a stop when quickly approached from behind by another vehicle, and motioning the approaching vehicle to go around with adequate room to do so does not constitute “unusual conduct” leading reasonably to a conclusion that criminal activity is taking place. There was no indication Cardwell’s vehicle was in any way disabled or that Cardwell was in need of help. In fact, Cardwell waved the officer on.

Taking all of the circumstances into consideration, then, the Court was able to find that the officer never should have stopped Cardwell in the first place.  Why?  He had no reason to.  There was no indication that anything of a criminal nature had happened or would happen. The law is clear on this point, and it is good for law enforcement to be reminded of it.  For this reason, the Court reversed Caldwell’s conviction.

Read More:  The Field Sobriety Test In A DUI Or DWI Case

Sexting Laws In Kansas And Missouri

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“Sexting” is the term used to describe the sending or receiving of sexually explicit images, usually by means of a hand-held smart phone.  The ready access to photographic technology, and the ease with which photos can now be taken, mean that users of cell phones are more likely to take advantage of the technology.  Cell phones and smart phones are here to stay, and with this presence comes possible dangers.  What may seem funny or amusing is most certainly not.  When minors “sext” photos to others, even photos of themselves, serious criminal issues can be implicated.

“Sexual exploitation of a child” under Kansas law (K.S.A. 21-5510) is the following:

21-5510. Sexual exploitation of a child.  (a) Sexual exploitation of a child is:

(1) Employing, using, persuading, inducing, enticing or coercing a child under 18 years of age, or a person whom the offender believes to be a child under 18 years of age, to engage in sexually explicit conduct with the intent to promote any performance;

(2) possessing any visual depiction of a child under 18 years of age shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender or any other person;

(3) being a parent, guardian or other person having custody or control of a child under l8 years of age and knowingly permitting such child to engage in, or assist another to engage in, sexually explicit conduct for any purpose described in subsection (a)(1) or (2); or

(4) promoting any performance that includes sexually explicit conduct by a child under 18 years of age, or a person whom the offender believes to be a child under 18 years of age, knowing the character and content of the performance.

(b) (1) Sexual exploitation of a child as defined in:

(A) Subsection (a)(2) or (a)(3) is a severity level 5, person felony; and

(B) subsection (a)(1) or (a)(4) is a severity level 5, person felony, except as provided in subsection (b)(2).

(2) Sexual exploitation of a child as defined in subsection (a)(1) or (a)(4) or attempt, conspiracy or criminal solicitation to commit sexual exploitation of a child as defined in subsection (a)(1) or (a)(4) is an off-grid person felony, when the offender is 18 years of age or older and the child is under 14 years of age.

(c) If the offender is 18 years of age or older and the child is under 14 years of age, the provisions of:

(1) Subsection (c) of K.S.A. 2012 Supp. 21-5301, and amendments thereto, shall not apply to a violation of attempting to commit the crime of sexual exploitation of a child as defined in subsection (a)(1) or (a)(4);

(2) subsection (c) of K.S.A. 2012 Supp. 21-5302, and amendments thereto, shall not apply to a violation of conspiracy to commit the crime of sexual exploitation of a child as defined in subsection (a)(1) or (a)(4); and

(3) subsection (d) of K.S.A. 2012 Supp. 21-5303, and amendments thereto, shall not apply to a violation of criminal solicitation to commit the crime of sexual exploitation of a child as defined in subsection (a)(1) or (a)(4).

(d) As used in this section:

(1) ”Sexually explicit conduct” means actual or simulated: Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex; masturbation; sado-masochistic abuse with the intent of sexual stimulation; or lewd exhibition of the genitals, female breasts or pubic area of any person;

(2) ”promoting” means procuring, transmitting, distributing, circulating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising:

(A) For pecuniary profit; or

(B) with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the offender or any other person;

(3) ”performance” means any film, photograph, negative, slide, book, magazine or other printed or visual medium, any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk or any play or other live presentation;

(4) ”nude” means any state of undress in which the human genitals, pubic region, buttock or female breast, at a point below the top of the areola, is less than completely and opaquely covered; and

(5) ”visual depiction” means any photograph, film, video picture, digital or computer-generated image or picture, whether made or produced by electronic, mechanical or other means.

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Sexting could also fall under the Kansas statute for “promoting obscenity to a minor”, which is codified in K.S.A. 21-6401, shown in part below.  Note here that the mental state required is only “recklessly”, which is a lower mental state than “knowingly” or “deliberately.”

21-6401. Promoting obscenity; promoting obscenity to minors.

(a) Promoting obscenity is recklessly:

(1) Manufacturing, mailing, transmitting, publishing, distributing, presenting, exhibiting or advertising any obscene material or obscene device;

(2) possessing any obscene material or obscene device with intent to mail, transmit, publish, distribute, present, exhibit or advertise such material or device;

(3) offering or agreeing to manufacture, mail, transmit, publish, distribute, present, exhibit or advertise any obscene material or obscene device; or

(4) producing, presenting or directing an obscene performance or participating in a portion thereof which is obscene or which contributes to its obscenity.

(b) Promoting obscenity to minors is promoting obscenity, as defined in subsection (a), where a recipient of the obscene material or obscene device or a member of the audience of an obscene performance is a child under the age of 18 years.

(c) (1) Promoting obscenity is a:

(A) Class A nonperson misdemeanor, except as provided in (c)(1)(B); and

(B) severity level 9, person felony upon a second or subsequent conviction.

(2) Promoting obscenity to minors is a:

(A) Class A nonperson misdemeanor, except as provided in (c)(2)(B); and

(B) severity level 8, person felony upon a second or subsequent conviction.

In Missouri, there are several statutes that can be used to cover “sexting.”  These laws revolve around prohibitions of possession, making, or distributing child pornography.  The younger the victim is, the more severe the penalty.  Missouri statutes covering these offenses are:  RSMO Sections 573.010, 573.023, 573.025, 573.035, and 573.037.  Furthermore, the crime of “sexual misconduct involving a child” is covered under RSMo. 566.083:

566.083. 1. A person commits the offense of sexual misconduct involving a child if such person:

(1) Knowingly exposes his or her genitals to a child less than fifteen years of age under circumstances in which he or she knows that his or her conduct is likely to cause affront or alarm to the child;

(2) Knowingly exposes his or her genitals to a child less than fifteen years of age for the purpose of arousing or gratifying the sexual desire of any person, including the child;

(3) Knowingly coerces or induces a child less than fifteen years of age to expose the child’s genitals for the purpose of arousing or gratifying the sexual desire of any person, including the child; or

(4) Knowingly coerces or induces a child who is known by such person to be less than fifteen years of age to expose the breasts of a female child through the internet or other electronic means for the purpose of arousing or gratifying the sexual desire of any person, including the child.

The provisions of this section shall apply regardless of whether the person violates this section in person or via the internet or other electronic means.

It is not a defense to prosecution for a violation of this section that the other person was a peace officer masquerading as a minor.

The offense of sexual misconduct involving a child is a class E felony unless the person has previously been found guilty of an offense under this chapter or the person has previously been found guilty of an offense in another jurisdiction which would constitute an offense under this chapter, in which case it is a class D felony.

Missouri also has a statute that forbids the furnishing of pornographic materials to a minor, RSMo. Sect. 573.040:

573.040. 1. A person commits the offense of furnishing pornographic material to minors if, knowing of its content and character, he or she:

(1) Furnishes any material pornographic for minors, knowing that the person to whom it is furnished is a minor or acting in reckless disregard of the likelihood that such person is a minor; or

(2) Produces, presents, directs or participates in any performance pornographic for minors that is furnished to a minor knowing that any person viewing such performance is a minor or acting in reckless disregard of the likelihood that a minor is viewing the performance; or

(3) Furnishes, produces, presents, directs, participates in any performance or otherwise makes available material that is pornographic for minors via computer, electronic transfer, internet or computer network if the person made the matter available to a specific individual known by the defendant to be a minor.

  1. It is not a defense to a prosecution for a violation of this section that the person being furnished the pornographic material is a peace officer masquerading as a minor.

  2. The offense of furnishing pornographic material to minors or attempting to furnish pornographic material to minors is a class A misdemeanor unless the person has been found guilty of an offense committed at a different time pursuant to this chapter, chapter 566 or chapter 568, in which case it is a class E felony.

There are a number of federal statutes that could possibly cover “sexting” types of scenarios, but these are not commonly used in this manner.  The point here is that “sexting” can be an extremely serious matter.  Sex offender registration is also an issue with these cases.  Parents and those in positions of authority should educate their children that under no circumstances should “sexting” be engaged in.

Read More:  Computer Child Pornography Cases In Kansas And Missouri

Fines And Restitution From Criminal Cases Are Protected In Bankruptcy

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In bankruptcy, debts originating from fines or penalties in criminal cases are generally not dischargeable.  A 2014 ruling by the 8th Circuit Bankruptcy Appellate Panel (B.A.P.) has restated this point. The case in question was Behrens v. United States (In Re Behrens, No. 13-6052, 2014 Bankr. LEXIS 565, Feb. 12, 2014).

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Kansas City Missouri Municipal Court: An Overview

The Kansas City Municipal Division is part of Judicial Circuit 16.  The courthouse is located at 1101 Locust, Kansas City MO  64106.  It hears misdemeanors, infractions, and even housing code violations cases that arise out of incidents alleged to have occurred in the metropolitan Kansas City Missouri area.  It has eleven courts that deal with such cases, and the courts are indicated by letter (Courtroom A through K).  Persons who have received a citation or a summons to the the KCMO Municipal Court should look at their documentation carefully to make sure that they know when and where their court date is.  If you do not have your paperwork, your attorney can find this information out for you.

It is important to have an attorney when dealing with issues in KCMO Municipal Court.  Too often, people make the mistake of not doing this, and then find out later that big problems have been created.  In addition, having and attorney can do the following for you:  (1) Work on withdrawing active warrants and getting you a court date; (2) Changing the time and date of your current court date.  For many people, having these things done is an important part of the preliminary matters surrounding a case.  Under the “add on” system, and depending on the nature of the case, your attorney can often resolve your issue without you having to be there in court.

The Municipal Court should not be confused with the Jackson County Circuit Court itself, which is located near the Municipal Court but hears different types of cases.

Read More:  Overland Park Municipal Court:  An Overview