State v. Cleverley, 390 P.3d 75

Defendant Cleverley was hired as an in-home caregiver for dependent adult Harriet McCool in late 2011, later obtained a durable power of attorney, and was paid substantial wages while allegedly using McCool’s credit cards and withdrawing cash.
Medical records showed McCool’s dementia worsened; she was hospitalized on April 8, 2012 with dehydration, malnutrition, and apparent overmedication, then placed in long-term care and later died in 2013.
Police investigation attributed approximately $81,355.67 in losses from McCool’s accounts to transactions during Cleverley’s employment.
The State subpoenaed credit-card business records and sought admission by affidavit under K.S.A. 2015 Supp. 60-460(m) and 60-245a; Cleverley objected to admitting the records without live testimony from records custodians.
The district court admitted the records on affidavit, a jury convicted Cleverley of mistreatment of a dependent adult (finding a fiduciary relationship), and the court imposed an upward durational departure sentence and restitution; Cleverley appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of business records by affidavit	Affidavits are improper when any party objects; records custodians must testify in person	Statutes allow admission by custodian affidavit if no party has compelled personal attendance via subpoena duces tecum	Court: Statutes permit affidavit foundation; defendant must subpoena custodian to require live testimony; admission proper
Due process / burden shift	Requiring defendant to subpoena custodians effectively shifts State’s burden to defendant	Admission by affidavit changes only the manner of proof, not the State’s burden; defendant may use compulsory process to challenge affidavits	Court: No due process violation; burden of proof remains with State
Confrontation Clause	(raised briefly on appeal) admission denied right to confront witnesses	Not argued below; not preserved for appeal	Court: Claim abandoned / not preserved; not considered
Sufficiency of evidence (undue influence and loss ≥ $25,000)	Evidence was speculative and nieces—not defendant—caused isolation; losses not proven	Medical records, testimony, surveillance, credit statements and walkthrough video supported undue influence and itemized losses	Court: Viewing evidence favorably to State, jury rationally found undue influence and loss ≥ $25,000; conviction affirmed

State v. Collins, 303 Kan. 472 (cites standard of statutory interpretation)
State v. Barlow, 303 Kan. 804 (statutory interpretation when language ambiguous)
State v. Colbert, 26 Kan. App. 2d 177 (presumption of innocence and burden of proof discussion)
In re Winship, 397 U.S. 358 (presumption of innocence; State must prove guilt beyond a reasonable doubt)
State v. Bethel, 275 Kan. 456 (defendant may present evidence without shifting State’s burden)
Taylor v. Illinois, 484 U.S. 400 (criminal defendant’s compulsory process rights via subpoena)
State v. Murray, 302 Kan. 478 (failure to brief an issue is deemed abandoned)
State v. Godfrey, 301 Kan. 1041 (constitutional issues must be preserved below to be reviewed on appeal)
State v. Laborde, 303 Kan. 1 (standard for reviewing sufficiency of evidence)