C.M. v. McKee
115001
| Kan. Ct. App. | Jun 23, 2017Background
- McKee, a neighbor in his 60s, lived near A.M., an 11-year-old girl; relations soured after McKee complained about the neighbor's yard.
- A.M. testified to three incidents: McKee jumped out from behind bushes as she walked home; he yelled after a plastic bottle entered his yard; and he allegedly removed his hands from his steering wheel and swerved his truck toward a car carrying A.M. and her father.
- Father corroborated the driving incident, testifying McKee stared at them in a parking lot and later approached while waving, laughing, and pointing; McKee denied intentional dangerous driving.
- The district court denied protection petitions filed by A.M.’s parents but granted A.M.’s petition, finding at least two acts supporting stalking and entering a one-year protection order.
- McKee appealed; the protection order had expired by appeal, raising a mootness question, but the court elected to decide the appeal because the child-testimony standard is a recurring public-importance issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness / exceptions | A.M.: appellate review warranted for public importance and future guidance | McKee: order expired; appeal moot; no ongoing harm | Court: not moot under public-importance exception; will decide issue |
| Standard for fear/emotional distress | A.M.: apply a reasonable-child (age 11) standard when assessing fear and substantial emotional distress | McKee: apply objective reasonable-person (adult) standard; child’s fear is not dispositive | Court: use reasonable-child standard; consider how a reasonable 11-year-old would perceive conduct |
| Sufficiency of evidence for stalking elements | A.M.: testimony of at least two intentional, directed acts (bush jump; swerving) causing fear/distress supports protection order | McKee: yelling and alleged swerving don’t show intent directed at A.M. or cause reasonable fear for an 11-year-old | Court: affirmed — testimony supported two qualifying acts (jumping from bushes; truck swerving) satisfying statutory stalking elements |
Key Cases Cited
- State v. Montgomery, 295 Kan. 837 (discussing mootness and appellate review principles)
- State v. DuMars, 37 Kan. App. 2d 600 (explaining exceptions to mootness for public importance and harm to rights)
- J.D.B. v. North Carolina, 564 U.S. 261 (2011) (child’s age must be considered in assessing how a reasonable person would perceive custodial circumstances)
- State v. Gibson, 299 Kan. 207 (applying child-related factors in Miranda context)
- Honeycutt v. City of Wichita, 247 Kan. 250 (considering child’s age in comparative-negligence analysis)
- O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318 (appellate practice: infer factual findings that support judgment when supported by substantial evidence)
- Wing v. City of Edwardsville, 51 Kan. App. 2d 58 (similar principle on appellate review of factual findings)