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State v. Cleverley

Court of Appeals of Kansas

February 3, 2017

State of Kansas, Appellee,
Amie Cleverley, Appellant.


         1. 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.

         2. The 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.

         3. 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 Supp. 60-245.

         4. The 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 States Constitution.

         5.Under the facts of this case, the State presented sufficient evidence to support the defendant's conviction of mistreatment of a dependent adult.

         Appeal from Johnson District Court; Sara Welch, judge.


          Carl E. Cornwell, of Olathe, for appellant.

          Steven 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.

          Before Arnold-Burger, C.J., Pierron and Malone, JJ.

          Malone, J

         Amie 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.

         Factual and Procedural Background

         We will 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.

         In 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.

         In 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.

          Out of 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 ...

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