Statutory interpretation is a question of law over which
appellate courts have unlimited review. In construing a
statute, the court's primary goal is to give effect to
the legislative intent expressed through the plain language
of the statute. Only if the language is ambiguous-meaning
capable of more than one reasonable interpretation-does an
appellate court look behind the plain language to legislative
history or resort to canons of construction.
business records exception to hearsay in K.S.A. 2015 Supp.
60-460(m) does not require the presence of a records
custodian if the party seeking to admit the business records
complies with K.S.A. 2015 Supp. 60-245a. That statute
provides authority for a party to issue a subpoena duces
tecum for the production of business records from a nonparty.
In lieu of appearing to testify about the accuracy of the
records, a records custodian or a person with knowledge of
the business practices that generated and retained the
records may submit an affidavit with the information required
by the statute.
K.S.A. 2015 Supp. 60-245a(c) provides that any party may
require the personal attendance of a business records
custodian or the production of original business records in
an action in which the business is not a party by causing a
subpoena duces tecum to be issued pursuant to K.S.A. 2015
provisions of K.S.A. 2015 Supp. 60-460(m) incorporating the
requirements of K.S.A. 2015 Supp. 60-245a do not
impermissibly shift the State's burden of proof to the
defendant in a criminal prosecution in violation of the Due
Process Clause of the Fourteenth Amendment to the United
the facts of this case, the State presented sufficient
evidence to support the defendant's conviction of
mistreatment of a dependent adult.
from Johnson District Court; Sara Welch, judge.
E. Cornwell, of Olathe, for appellant.
J. Obermeier, senior deputy district attorney, Jacob
Gontesky, assistant district attorney, Stephen M. Howe,
district attorney, James Crux, legal intern, and Derek
Schmidt, attorney general, for appellee.
Arnold-Burger, C.J., Pierron and Malone, JJ.
Cleverley appeals her conviction of mistreatment of a
dependent adult. Cleverley contends the district court erred
in interpreting K.S.A. 2015 Supp. 60-460(m) and K.S.A. 2015
Supp. 60-245a by allowing the State to introduce certain
business records by affidavit without requiring the records
custodian to testify in person at trial. She also argues that
the district court's interpretation of the statutes
renders them unconstitutional as applied to her. Finally,
Cleverley challenges the sufficiency of the State's
evidence supporting her conviction. For the reasons stated
herein, we affirm the district court's judgment.
and Procedural Background
review the factual and procedural background of
Cleverley's case in detail. For years, Harriet Lynn
McCool lived in her Overland Park residence with her husband,
who designed and installed commercial fire suppression
systems. They had no children. McCool had a sister, Ella, and
four nieces living in Texas. The nieces, Charlotte Cross,
Cindy Hawkins, Carol Slight, and Cheryl Wulff, claimed to
have been close to McCool as they grew up and described her
as a favorite aunt.
January 2011, McCool's husband died. After her
husband's death, McCool, then 73 years old, exhibited a
change in personality, becoming less bubbly and more quiet.
She also began exhibiting some signs of memory loss. The
nieces attempted to remain in close contact with McCool after
her husband died, and one or another of them visited McCool
frequently between January 2011 and November 2011. Those who
visited were concerned by changes in McCool's
housekeeping and in her ability to recall things.
August 2011, Darrell Street, McCool's accountant,
scheduled an appointment for McCool to see Dr. Thomas Wayne
Fulbright, who diagnosed McCool with the onset of mild to
moderate dementia. Fulbright administered the Montreal
Cognitive Exam, a tool designed to test a person's
functional, cognitive ability. McCool did not perform well on
the exam. Fulbright prescribed Aricept, a drug used to slow
the progress of dementia.
concern for their aunt's deteriorating condition and
believing that individuals close to McCool might be taking
financial advantage of her, the nieces instigated involuntary
guardianship proceedings. In conjunction with those
proceedings, Slight and Hawkins accompanied McCool to an
appointment with Fulbright on November 14, 2011. Fulbright
clearly stated that McCool was not capable of living safely
alone. Though McCool wanted to remain in her own home,
Fulbright recommended placing her in an assisted ...