Kansas Court of Appeals - 102004 – State v. Lee

4.
When measured by a common understanding and practice, the word
"predominantly" as used in the ordinance at issue in this case sufficiently conveys fair
notice of the proscribed conduct and its use does not render the ordinance
unconstitutionally vague.
5.
A district court may grant a continuance to either party for good cause shown, and
the decision to continue a criminal case lies within the sound discretion of the district
court. A discretionary decision made by the court is protected if reasonable persons could
differ upon the propriety of the decision. A district court may be found to have abused its
discretion, however, if the decision failed to take into account the applicable legal
standards.
6.
When a request for a continuance has been made in order to secure attendance of a
witness at trial, the factors relevant to a decision regarding that request include: the
possible prejudice to the defendant, the diligence or lack thereof in attempting to secure
the attendance of the witness, the materiality and importance of the probable testimony,
and the probability of the witness' appearance at a later date if the continuance is granted.
In this case, we find the district court applied the proper legal standard in deciding to
deny the defendant's motion to continue and that reasonable persons could agree with this
decision; thus, the district court did not err in denying a continuance.
7.
If a party does not object to a jury instruction at trial, an appellate court reviews a
claim that the instruction is erroneous under the clearly erroneous standard. Instructions
are clearly erroneous only if the reviewing court is firmly convinced there is a real
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