Opinion
112,282.
07-24-2015
STATE of Kansas, Appellee, v. Jackie Lee THOMAS, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P. J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jackie Lee Thomas pled guilty to making a criminal threat. He had a crossbow with him at the time. Under the Kansas Offender Registration Act, K.S.A. 22–4901 et seq. , in order to require a defendant who has committed a person felony to register as a violent offender, the district court must first make a finding on the record that a deadly weapon was used in the commission of that person felony. Because the court failed to make such a finding here, we hold that Thomas is not required to register. We vacate the registration order.
Thomas comes to a neighbor's door, leaves, and then returns.
Under every scenario that this court can conceive, nothing good can come from an extremely drunk man carrying a 12–pack of beer and a crossbow. That is what happened in Hutchinson in November 2013. Thomas, obviously intoxicated, came to the door of his neighbor, Shelly King, around 5 p.m. one evening. When she opened the door, Thomas gave her the beer to keep for him. He then left. Thomas came back about 45 minutes later and demanded the beer back. King said he was yelling at her and was pointing a black crossbow at her that she thought was loaded. She gave him his beer and he left.
The police were called. After an investigation, which included a statement from King's mother-in-law, Linda D. Heffner, that confirmed King's statement, Thomas was arrested. The State charged Thomas with aggravated assault, a severity level 7 person felony, claiming the crossbow was a deadly weapon. As a result of a plea bargain, Thomas pled guilty to making a criminal threat, in violation of K.S.A.2013 Supp. 21–5415(a)(1), a severity level 9 person felony.
At the sentencing hearing, the State asked the court to require Thomas to register as a violent offender because of the use of the crossbow in this case. Thomas objected and argued that he had pled guilty to making a verbal threat, an offense that would not require the use of a deadly weapon. The court decided to take evidence on the matter.
At the evidentiary hearing, the district court acknowledged that, “whether [Thomas] will be required to register or not depends on a factual finding as to whether a deadly weapon was used in the commission of the offense. ” (Emphasis added.) The district court heard testimony from both Thomas and Hutchinson Police Officer Robert Wylie. Wylie brought with him the crossbow and arrows seized at the scene.
Wylie testified that the crossbow presented at the evidentiary hearing was the same crossbow that Thomas “pointed at someone” or caused Thomas to be arrested for aggravated assault with a deadly weapon. Wylie testified that the crossbow appeared to be functional because when he approached Thomas and the other individual, he saw that they were both leaning over and appeared to be attempting to cock the crossbow and put an arrow in it. Wylie clarified that the crossbow string had not been drawn or pulled back when it was collected as evidence. Thomas, however, testified that he was unable to cock the crossbow or pull the string back and denied pointing it at anyone, taking it to King's house, or even holding it in his hands.
When the parties argued the matter, the State asserted the district court should find that the crossbow was a deadly weapon used in the commission of a crime because it did not matter whether the crossbow could be cocked, only that the crossbow is a deadly weapon designed to cause great bodily harm when cocked and fired at “somebody.” In contrast, Thomas argued that (1) he entered a plea to a verbal criminal threat, a charge which did not contain the element of involving a deadly weapon; (2) the crossbow was not a deadly weapon because it was not cocked when the officers seized the weapon and Thomas testified he was unable to cock it; and (3) there was no evidence presented at the hearing from any victim that Thomas actually used the crossbow during the commission of his crime of conviction.
Before ruling, the district court stated that for it to order Thomas to register it was required to make a determination “if, in fact, the [crossbow] is a deadly weapon.” The district court then made the following findings on the record:
“Certainly as it stands right now it is not operable, but it certainly does not appear to be broken. To me it would be somewhat akin to pointing a shotgun at someone and having the safety on or not having the gun cocked, if it's a particular weapon that requires a cocking. That certainly if I had one of these, or I felt a reasonable person had had one of those pointed at them that they would believe based upon this and the type of, of device that it is certainly would be a weapon that could cause death or great bodily harm.”
The district court concluded this factual finding triggered the KORA requirement that Thomas register as a violent offender. The district court sentenced Thomas to 12 months' probation with an underlying 8–month prison sentence and ordered him to register as an offender for a period of 15 years.
The registration law requires some to register as violent offenders.
After July 1, 2006, K.S.A.2013 Supp. 22–4902b(e)(2) defines a violent offender as any person who “is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony. ” (Emphasis added.) To be “used” within the meaning of K.S.A.2013 Supp. 22–4902b(e)(2) “requires the deliberate utilization (active employment) either directly, indirectly, or in some manner using a weapon that results in a change of circumstances of the crime being committed, such as facilitating commission of the offense.” State v. Dinneen, 48 Kan.App.2d 692, Syl. ¶ 4, 297 P.3d 1185 (2013).
Clearly then, to require registration in this case, Thomas must have committed a person felony and during the commission of such felony, he must have used a deadly weapon. Because Thomas was convicted of the person felony criminal threat after July 1, 2006, we focus on the district court's findings addressing the second requirement—whether Thomas used a deadly weapon at any time while threatening King.
Thomas is not required to register as a violent offender just because he pled guilty to making a criminal threat. Making a criminal threat can be accomplished without using a deadly weapon. The criminal threat statute Thomas pled guilty to, K.S.A.2013 Supp. 21–5415(a)(1), provides in relevant part: “A criminal threat is any threat to: ... [c]ommit violence communicated with intent to place another in fear.” As this court in State v. Rodriguez, No. 110,604, 2014 WL 6777430, at *3 (Kan.App.2014) (unpublished opinion), petition for rev. filed December 24, 2014, explained, “[t]he statute criminalizes a threat of violence the maker communicates to cause fear. The actus reus is a communicated threat of violence. And the mens rea is the intent to induce fear.”
Thus, a conviction of criminal threat required no proof that Thomas used a deadly weapon to obtain the desired reaction in communicating his threat to King. The elements of the crime are important given that the record of the plea hearing indicates the factual basis the district court relied upon for the plea, as required under K.S.A. 22–3210(a)(4), set forth no factual details indicating Thomas used a crossbow.
The State, in a vain attempt to persuade us that the court correctly ordered registration, points to the probable cause affidavit supporting the aggravated assault complaint and the fact that “[p]robable cause to support the charge was found after evidence was presented at a preliminary hearing.”
In State v. Todd, No. 108,878, 2013 WL 5188251, at *5–6 (Kan.App.2013) (unpublished opinion), a panel of this court found the State's proffer at the plea hearing of the probable cause affidavit and the preliminary hearing transcript was sufficient evidence to support registration as a violent offender under KORA. But unlike Todd, the State here never proffered the probable cause affidavit or the preliminary hearing transcript at the plea hearing to support that the crossbow was used to facilitate the criminal threat. Nor did the State ever proffer the affidavit or the preliminary hearing transcript at the evidentiary hearing to decide the registration issue. In fact, the record on appeal does not even contain a copy of the preliminary hearing transcript. The burden is on the party making a claim to designate facts in the record to support that claim; without such a record, the claim of error fails. Fletcher v. Nelson, 253 Kan. 389, 392, 855 P.2d 940 (1993).
While such lack of support would directly impact our review for substantial competent evidence, the district court's order on its face clearly failed to comply with K.S.A.2013 Supp. 22–4902b(e)(2). In ordering Thomas to register, the district court limited its findings to whether a crossbow is a deadly weapon. The district court did not make any specific finding on the record that Thomas deliberately used the crossbow either directly, indirectly, or in some other manner during the commission of his crime. See Dinneen, 48 Kan.App.2d 692, Syl. ¶ 4. The district court's order only speaks in generalities regarding the use of a crossbow simply to support its finding that the crossbow was a deadly weapon.
For the district court to order Thomas to register, K.S.A.2013 Supp. 22–4902b(e)(2) required a finding of more than whether “if, in fact, the [crossbow] is a deadly weapon.” In the absence of the complete required finding by the district court, it is not this court's role to fill in the blank that Thomas actively employed or used a deadly weapon in the commission of the person felony of criminal threat.
And because our conclusion leads to our vacation of the registration order, we will not address the remaining argument raised by Thomas.
Registration order vacated.