Opinion
No. 110,678.
2014-12-12
STATE of Kansas, Appellee, v. Roger L. ZOGLMAN, Appellant.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.Heather Cessna, of Kansas Appellate Defender Office, for appellant.Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Roger Zoglman was convicted in a jury trial of aggravated battery. He raises four issues in his direct appeal: (1) the prosecutor committed misconduct during closing arguments when he vouched for the credibility of the State's witness; (2) the trial court failed to give a limiting instruction for a prior uncharged crime; (3) the trial court incorrectly scored his prior criminal history by classifying two convictions of crimes committed before the Kansas Sentencing Guidelines Act (K.S.A. 21–4701 et seq.) took effect in July 1993 as person misdemeanors; and (4) the trial court violated Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Finding no merit in these contentions, we affirm.
Zoglman met Troy Schuetze sometime in 2009 or 2010, when Schuetze was dating Dawn, a friend of Zoglman's wife. When Schuetze's relationship with Dawn ended, Schuetze had a phone conversation with Zoglman's wife. During this phone call, he called Zoglman's wife a “bitch.”
Approximately 2 years later in January 2012, Schuetze was at a bar in Sedgwick County, Kansas. While sitting with his friend Wayne Delfelder, Schuetze noticed that Zoglman and his wife were in the bar with several other people. Before going out to the patio to have a cigarette, Schuetze expressed some concern to Delfelder and asked him to check on him if anyone followed him outside. Delfelder said he did not see anything unusual. Hilary Williams, who was also at the bar, saw several people, including Zoglman, follow Schuetze out to the patio.
Once on the patio, Schuetze lit a cigarette and checked his phone for messages. Schuetze heard the patio door slam open, and Zoglman appeared carrying a beer glass in his hand. Zoglman told Schuetze, “This is for calling my old lady a bitch.” He hit Schuetze in the face with the beer glass, shattering the beer glass. Zoglman then struck Schuetze several more times. Another patron of the bar, Jesse Tucker, was on the patio when the incident occurred. Tucker saw Zoglman swing a beer glass at Schuetze; although he did not see the beer glass strike Schuetze. Nevertheless, he saw Schuetze on the ground.
Sandra Ballinger, the bar's owner, drove Schuetze to the hospital. While en route, Schuetze identified Zoglman as his assailant. At the hospital, Schuetze told his brother and Officer Bradley Boyd, in separate conversations, that Zoglman was the assailant. Schuetze also told both men that Zoglman prefaced his attack by saying that it was “for calling [Zoglman's] wife a bitch.” Schuetze received multiple lacerations to his face causing permanent scarring. The force of the beer glass striking his right eye has also caused excessive watering and some blurred vision.
The State charged Zoglman with aggravated battery, in violation of K.S.A.2011 Supp. 21–5413(b)(l)(B).
The case was tried to a jury in May 2013. Zoglman testified in his own defense and offered a different version of events. Zoglman contended that he had no contact with Schuetze that night at the bar and that he had never hit Schuetze. John Blackmon, who is Zoglman's son-in-law, testified that Zoglman had been with him inside the bar the whole time that night and that Zoglman never went out to the patio. Moreover, Zoglman's daughter, Patricia Blackmon, testified that Zoglman was seated at a table with her when the incident involving Schuetze occurred.
The jury found Zoglman guilty as charged. His criminal history category was determined to be C, based in part on two convictions of crimes committed before the Kansas Sentencing Guidelines Act (K.S.A. 21–4701 et seq.) and other amendments which took effect in July 1993. The trial court imposed an aggravated presumptive sentence of 75 months' imprisonment with 36 months' postrelease supervision. Nevertheless, the trial court granted a downward dispositional departure to 36 months of probation. Zoglman appeals.
Vouching for the State's Witnesses
Zoglman first alleges that the State committed misconduct during closing argument when the prosecutor expressed a personal opinion regarding the credibility of Tucker's testimony. Zoglman's failure to object to the prosecutor's alleged improper comment during closing argument does not preclude review of this issue on appeal. See State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012) (contemporaneous objection not required to preserve questions of prosecutorial misconduct for comments made during closing argument).
Our review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, we must determine whether the prosecutor's comments were outside the wide latitude that prosecutors are allowed in discussing the evidence. Second, if misconduct is found we must then determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
While a prosecutor may comment on the credibility of witnesses, he or she is prohibited “ ‘from expressing personal opinions on the credibility of a witness because such comments are ‘unsworn, unchecked testimony, not commentary on the evidence of the case.’ [Citations omitted.]” State v. Peppers, 294 Kan. 377, 396, 276 P.3d 148 (2012). Nevertheless, a prosecutor has considerable latitude in discussing the evidence and drawing reasonable inferences based on the evidence. State v. McCaslin, 291 Kan. 697, 722, 245 P.3d 1030 (2011). Moreover, this court considers the alleged improper statements in the context of the entire closing argument and in conjunction with the instructions given at trial. Burnett, 293 Kan. at 851.
Here, Zoglman complains about several comments made by the prosecutor during the closing argument regarding Tucker:
“Now, the defense wants you to believe that [Tucker], you know, didn't know what was going on. [Tucker], you know, just kind of made things up. Well, ask yourselves, why? Why would [Tucker] make anything up. You know, he didn't pick him out of the photo lineup. The State didn't hide that from you. We told you that. But you saw the pictures. You saw how small they are. Doesn't—the picture number five, you look at it and look at him now and see. Does it look the same. Is that how he looked at the time, but [Tucker] was consistent. He came in at the prelim, he said, yep, that's the guy that did it. And he came in today, ladies and gentlemen, and told you he did it.
“ And what motive does he have. He doesn't have a dog in the fight. Like we talked about in jury trial. He doesn't know either one of the guys until after this happens. But what's telling about [Tucker] is if you look at State's Exhibit 34, Sandra says he's outside. Everyone that they talk to says [Tucker is] outside. And what does [Tucker] say? [Tucker] says, remember, he didn't read any transcripts. Nobody told him what to say.
....
“It is questionable whether he even knows how to read, but [Tucker] said what he remembers is the fight happened right in here. Well, guess what. Blood's right there. Blood's right there. So, ladies and gentlemen, what motive, what basis does [Tucker] have to come in here and not tell you what he saw.
“ They're not friends. There's no bias there. And he says, you know what, I just know what I saw, and he told you, and he told you, that's why I'm here to tell you what I saw.” (Emphasis added.)
Zoglman, without offering any support, argues that the four emphasized portions of the prosecutor's remarks were improper comments vouching for Tucker's credibility. We disagree.
Neither party disputes that this case primarily turned on which conflicting testimony the jury believed. But the prosecutor's comments did not imply that the prosecutor had any personal knowledge of Tucker's truthfulness. Instead, the prosecutor made reasonable comments based on the evidence adduced at trial: that Tucker and Zoglman had never met before the night of the incident and that Tucker and Schuetze were not friends. The prosecutor was merely asking the jury to draw reasonable inferences from this evidence to explain Tucker's motivation to be truthful. See McCaslin, 291 Kan. at 722. A prosecutor's latitude in discussing the evidence to argue certain testimony is believable includes “explaining to the jury what it should look for in assessing witness credibility.” State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008).
Because these remarks fell within the wide latitude afforded to prosecutors and did not constitute misconduct, we need not proceed to the second step of the analysis. Zoglman's claim of prosecutorial misconduct fails.
Limiting Instruction
Next, Zoglman contends that a limiting instruction was necessary because the State admitted evidence of a prior uncharged crime under K.S.A.2011 Supp. 60–455(a) during Ballinger's testimony. Zoglman concedes that he did not request a limiting instruction.
A defendant can challenge the lack of a K.S.A. 60–455(b) limiting instruction as clearly erroneous even if the defendant did not object to the admission of the other crimes evidence at trial. State v. Breeden, 297 Kan. 567, 579, 304 P.3d 660 (2013).
This court uses a two-step process in determining whether the challenged instruction was clearly erroneous. First, we employ an unlimited review of the entire record to determine whether the subject instruction was legally and factually appropriate under K.S.A. 60–455. If there is an error, we must next review the entire record to make a de novo determination if the error is reversible. To reverse under the clearly erroneous standard we must be firmly convinced the jury would have reached a different verdict had a limiting instruction been given. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). Zoglman, as the party claiming error in the instructions, has the burden to prove the degree of prejudice necessary for reversal. See Smyser, 297 Kan. at 204.
K.S.A.2013 Supp. 60–455(b) provides that the jury may consider evidence of other crimes or civil wrongs to prove one or more of the eight enumerated material facts identified in the statute (motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) or some other material, nonpropensity fact. See State v. Gunby, 282 Kan. 39, 56–57, 144 P.3d 647 (2006) (the statutory list is “exemplary rather than exclusive”). Where such evidence is admitted, the trial court “must give a limiting instruction informing the jury of the specific purpose for admission.” Gunby, 282 Kan. 39, Syl. ¶ 3.
Zoglman's complaint concerns Ballinger's testimony describing her conversation with Schuetze while en route to the hospital. When asked on direct examination what Schuetze told her, Ballinger replied:
“[H]e said that ... they weren't getting by with it this time. That that was his ex-girlfriend and he called her a bitch a couple of years prior, and they beat him up for it and he deserved it. But this time he didn't do anything. And he's telling the police that [ sic ] who did it.”
Zoglman did not object to Ballinger's testimony. During a later recess after Ballinger testified, defense counsel suggested that Ballinger's aforementioned testimony had violated an oral order in limine and implied that Zoglman or his friends were the individuals that had beat him up previously. The trial court ruled that defense counsel had not contemporaneously objected to this testimony. The State suggested that defense counsel could “fix” the matter because Schuetze had told the police that “Dawn and her new husband or boyfriend named Jeff” and “two young kids” were the individuals that had beat Schuetze up a year earlier, not Zoglman. The State noted that it did not believe Schuetze was “gonna come in and say that [Zoglman was] the one that beat him up.”
Moreover, Zoglman told the trial court that neither he nor his attorney was requesting a mistrial over the allegedly prejudicial testimony of Ballinger:
“THE COURT: Mr. Zoglman, is it correct that as Mr. Sylvester's indicated that you do not wish to have him on your behalf make a motion for mistrial at this time on that basis?
“ZOGLMAN: That's correct, Your Honor.”
We first address the State's argument that Zoglman failed to preserve this issue for appeal because he did not contemporaneously object at trial to the admission of the evidence.
K.S.A. 60–404 generally precludes an appellate court from reviewing an evidentiary challenge “unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” State v. Holman, 295 Kan. 116, 126, 284 P.3d 251 (2012). Moreover, our Supreme Court has made it clear that it adheres to a K.S.A. 60–404 when considering evidentiary issues under K.S.A. 60–455. See, e.g., Breeden, 297 Kan. at 580; Holman, 295 Kan. at 127. Zoglman's failure to comply with the contemporaneous objection rule at trial is important because Zoglman is not allowed to frame an evidentiary argument as an instructional error under K.S.A. 60–455. See State v. Rojas–Marceleno, 295 Kan. 525, 538, 285 P.3d 361 (2012) (refusing to consider issue framed as an error in failing to give limiting instruction, finding that argument was simply a challenge to the admission of other crimes evidence and defendant had argued that the “ ‘jury should have been instructed to disregard’ the evidence because the evidence was prejudicial and irrelevant”).
Zoglman makes the general argument that the trial court “had a duty to give the jury a limiting instruction on that evidence so that they knew that, in deciding [his] guilt or innocence of this crime, they could not improperly consider his propensity to commit crimes based on this allegation of a prior crime.” But Zoglman's reliance on K.S.A. 60–455 is misplaced because Ballinger never identified Zoglman as one of the individuals who had attacked Schuetze previously or specifically referred to a “prior crime” committed by Zoglman. See State v. Boyd, 281 Kan. 70, 127 P.3d 998 (2006) (defendant did not have a valid objection under K.S.A. 60–455 when the evidence did not identify her). In fact, the record indicates defense counsel was made aware that Schuetze had already told the police who was actually involved in this alleged prior crime and could have easily clarified the testimony for the jury.
In Boyd, our Supreme Court clarified what acts are subject to the procedural safeguards under K.S.A. 60–455:
“ ‘The purpose of K.S.A. 60–455 is to forbid introduction of crimes or civil wrongs committed by the defendant in a criminal action or party in a civil action for the purpose of showing disposition to commit crime or civil wrong. In a criminal action, K.S.A. 60–455 applies only to the acts of the defendant.” [Citation omitted.]’ “ 281 Kan. at 95.
Because the record indicates that the previous beating of Schuetze was committed by individuals other than Zoglman, K.S.A. 60–455 was inapplicable. Thus, a limiting instruction under K.S.A. 60–455 would have been legally and factually inappropriate. See Smyser, 297 Kan. at 204.
Moreover, Zoglman does not identify relevant material facts under K.S.A. 60–455 or another nonpropensity purpose that should have been included in the limiting instruction. In addition, he does not suggest what would have been an appropriate limiting instruction. See PIK Crim. 4th 51.030.
In Kansas, limiting instructions vary from case to case and give specific directions to the jury on the narrow reasons for normally inadmissible evidence. For that reason, “shotgun” limiting instructions are improper. See State v. Donnelson, 219 Kan. 772, 777, 549 P.2d 964 (1976); State v. Gibson, 30 Kan.App.2d 937, 950, 52 P.3d 339, rev. denied 274 Kan. 1115 (2002) (“limiting instructions given after the admission of evidence pursuant to K.S.A. 60–455 must be narrowly tailored to mention only the grounds under which the evidence was admitted”). In such cases, as presented here, “we would be obliged to review the evidence and make a decision regarding the instructional language most likely to result in a different verdict. That is the sort of judgment call which the law entrusts to counsel for the defendant, not to the appellate court.” State v. Mason, No. 100,240, 2009 WL 1393817, at *3 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1283 (2010).
We conclude that since the contested evidence concerned conduct not involving Zoglman, his failure to contemporaneously object precludes review of this evidence under K.S.A. 60–404. Moreover, we further conclude that a limiting instruction was legally and factually inappropriate because K.S.A. 60–455 was not applicable to the facts here.
Zoglman's 1989 Battery Conviction and 1993 Domestic Battery Conviction
For his third issue, Zoglman argues that the trial court should not have classified his 1989 battery conviction and May 1993 domestic battery conviction as, person misdemeanors for the purpose of aggregation when it calculated his criminal history score. The presentence investigation report (PSI) indicated Zoglman had a criminal history score of C based on three previous adult person misdemeanors, which were converted to one adult person felony. See K.S.A.2011 Supp. 21–6811(a). Given the two prior convictions at issue, a change in Zoglman's criminal history score would have had a practical effect on his sentence. See K.S.A.2011 Supp. 21–6809. Zoglman asserts that classifying these two convictions as person misdemeanors violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Whether a trial court has correctly interpreted and applied the provisions of the Kansas Sentencing Guidelines Act, K.S.A.2011 Supp. 21–6801 et seq. , is a question of law subject to de novo review. State v. Barajas, 43 Kan.App.2d 639, 642, 230 P.3d 784 (2010). As a general rule, a criminal statute should be strictly construed in favor of the accused, and any reasonable doubt about a statute's meaning must be decided in favor of the accused. The rule of lenity is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Burnett, 297 Kan. 447, 451, 301 P.3d 698 (2013).
At the outset, we note that unless admitted in open court by the offender, the State has the burden of proving a defendant's criminal history by a preponderance of the evidence. See K.S.A.2011 Supp. 21–6814(c). A presentence investigation (PSI) report or the defendant's criminal history worksheet will generally satisfy the State's burden of proof. K.S.A.2011 Supp. 21–6814(b). Nevertheless, K.S.A.2011 Supp. 21–6814(b) is explicitly subject to the provisions of subsection (c) of the statute, which permits the defendant to challenge any alleged errors in the criminal history by filing specific written objections to the criminal history worksheet, which then shifts the burden to the State to prove the disputed part(s) by producing further evidence. Thus, K.S.A.2011 Supp. 21–6814(c) places an affirmative duty upon a criminal defendant to provide a timely written objection before sentencing to any error in the criminal history worksheet, specifying the exact nature of the alleged error.
Here, Zoglman did not object to any alleged errors in his criminal history score before the trial court or put the State on notice that it needed to prove his domestic battery and battery convictions were person misdemeanors. Zoglman is raising this claim for the first time on appeal. Generally, issues not raised before the trial court cannot be raised on appeal. State v. Cheffen, 297 Kan. 689, 698, 303 P.3d 1261 (2013). Moreover, constitutional grounds for reversal asserted for the first time on appeal are not properly before an appellate court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). The extent of Zoglman's argument in support of considering this issue for the first time is his statement: “[N]o objection is necessary where the issue presents a question of law and this Court is asked to consider the application of Apprendi.”
In Apprendi, the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. at 490. The claim of error asserted by Zoglman is that the trial court deprived him of his constitutional rights under the recent holding in Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). In Descamps, the United States Supreme Court held that a trial court may not look beyond the elements of a prior conviction or adjudication for purposes of a sentencing enhancement under Apprendi unless it ensures the previous statute of conviction or adjudication satisfies certain requirements. 133 S.Ct. at 2281–87. Zoglman's reliance on Descamps to resolve whether the trial court violated his constitutional rights depends on an interpretation of the relevant statutory language, which is a question of law.
Our Supreme Court has considered issues implicating Apprendi for the first time on appeal because they involve only questions of law arising on proved or admitted facts and are determinative of the case. See State v. Conley, 270 Kan. 18, 30–31, 11 P.3d 1147 (2000). Moreover, our Supreme Court has also considered issues implicating Apprendi for the first time on appeal to serve the ends of justice. See Conley, 270 Kan. at 30–31.
As a result, we are in a position to consider this issue for the first time on appeal. Nevertheless, we must still address the State's argument that Zoglman may not attack the scoring of his misdemeanor convictions because he invited the error by agreeing that his criminal history was accurate. Whether an issue is preserved is a question of law with an unlimited standard of review. See State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
The record indicates Zoglman's counsel at the sentencing hearing specifically stated that he had no objections to a criminal history score of C, which included Zoglman's previous domestic battery and battery convictions being used as two of the three adult misdemeanor felonies converted to one adult person felony. Zoglman's counsel then told the trial court, “I showed [the PSI report] to [Zoglman] as well, and I don't believe he has any objection.” When asked if he had any objection to his PSI report, Zoglman responded, “No, Sir .”
Even though K.S.A. 21–4721(e) grants this court jurisdiction to hear Zoglman's challenge to his criminal history, a defendant who invites error by stipulating to his criminal history at sentencing cannot later claim that it is incorrect. State v. Goeller, 276 Kan. 578, 585, 77 P.3d 1272 (2003); State v. Vandervort, 276 Kan. 164, 175–76, 72 P.3d 925 (2003). Similarly, Zoglman actively contributed to what he now claims was trial court error by stipulating to his criminal history. Thus, he should be precluded from arguing on appeal that a jury was required to make findings that his 1989 conviction for battery and 1993 conviction for domestic battery were person crimes.
Nevertheless, our Supreme Court in Vandervort recognized that appellate courts can review criminal history errors under K.S.A. 21–4721(e) in limited circumstances. These circumstances include: (1) where the attorney stipulated to the criminal history without the defendant also being given an opportunity to do so in open court and (2) where neither the attorney nor the defendant had an opportunity prior to sentencing to review the worksheet. 276 Kan. at 177. This court, in State v. Donaldson, 35 Kan.App.2d 540, 543–44, 133 P.3d 154 (2006), recognized a third exception, finding that “no party can properly stipulate to an incorrect application of the law” when “the stipulation at issue is not to the factual existence of his prior convictions but to the classification of those prior convictions.” But see State v. McCarley, 38 Kan.App.2d 165, 175–76, 166 P.3d 418 (2007), aff'd in part and rev'd in part 287 Kan. 167, 195 P.3d 230 (2008) (the invited error doctrine applies to criminal history scores irrespective of the legal aspect of such scores); State v. Madkins, No. 104,350, 2011 WL 4031531, at *3 (Kan.App.2011) (unpublished opinion), rev. denied 294 Kan. –––– (May 21, 2012) (“[t]he invited error doctrine applies to errors of law because it is based on estoppel, not on the personal knowledge of the defendant”).
Zoglman neither acknowledges his stipulation to his criminal history nor mentions the invited error doctrine and the applicability of Vandervort or Donaldson in his brief. An issue not briefed by an appellant is deemed waived and abandoned. Boleyn, 297 Kan. at 633. Moreover, neither of the Vandervort exceptions applies here. The record demonstrates Zoglman was given the opportunity to both review and specifically object to his PSI report at sentencing, but he chose not to. See Vandervort, 276 Kan. at 177.
Because Zoglman stipulated to the criminal history score he now challenges and failed to pursue any objections to his criminal history under K.S.A.2011 Supp. 21–6814(c), he has waived any objections about his misdemeanor convictions and this issue is not properly before us for the first time on appeal. Moreover, even if we were to consider Zoglman's argument worthy of consideration under the aforementioned exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal or that it fell under the Donaldson exception, he still would not prevail.
When determining an offender's criminal history, “[a]ll prior adult felony convictions, including expungements will be considered and scored.” K.S.A.2010 Supp. 21–4710(d)(2). Before July 1, 1993, felonies were not scored for sentencing purposes as either person or nonperson crimes. See State v. Smith, 49 Kan.App.2d 19, 21, 303 P.3d 716(2013).
Zoglman contends that the trial court erroneously relied on his 1989 conviction for battery and 1993 conviction for domestic battery as person crimes to increase his sentence. Specially, Zoglman argues that “the pre–1993 statutes for misdemeanor battery and misdemeanor domestic battery did not differentiate between person and nonperson crimes,” and it was the jury's responsibility to find beyond a reasonable doubt that both battery convictions were in fact person crimes.
Zoglman does not suggest in his brief any grounds for counting these two previous convictions as either unclassified or nonperson crimes. See K.S.A. 21–4710(d)(8). He does not argue that the statutes under which he was convicted would not be person crimes if compared to current statutes. See Smith, 49 Kan.App.2d at 22 (noting that appellate courts have “consistently classified pre–1993 offenses as either person or nonperson offenses for criminal history purposes by comparing the offenses to current guidelines offenses”). Nor does Zoglman make an effort to explain why K.S.A. 21–4707(c)(1), which requires the trial court to “refer to comparable offenses on the crime severity scale” when considering an unranked offense for criminal history purposes, should not be applied to his pre-July 1, 1993, convictions to determine how his crimes should be scored.
Instead, Zoglman frames this issue on appeal as whether the trial court was constitutionally permitted to go beyond the fact that he had a 1989 battery conviction and 1993 domestic battery conviction to classify each of these convictions as a person crime and, in turn, use that determination to enhance his sentence. To answer that question, we would normally apply the analysis set forth in Descamps. But Zoglman, despite relying on Descamps to advance his argument, makes no effort to conduct such an analysis and simply makes, without citation, the following conclusory statement: “ Descamps prohibits the use of any pre-KSGA convictions in one's criminal history.” See Boleyn, 297 Kan. at 633.
Before briefly considering Descamps and its application to this case, we note that Zoglman's argument, if accepted, would essentially mean that no crimes committed in Kansas before 1993, no matter how violent, could be counted as a person felony in scoring a defendant's criminal history for sentencing on a crime committed after 1993. This argument is not only an unreasonable interpretation of legislative intent but also asks us to depart from this court's “long held view that pre-Guidelines offenses may be classified as person offenses if the analogous statute now in effect is classified as a person crime.” Smith, 49 Kan.App.2d at 22.
When Zoglman's 1989 conviction occurred, battery was defined as “the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.” (Emphasis added.) K.S.A. 21–3412 (Ensley 1988); K.S.A. 21–3412 (Ensley 1981). No specific statutory provision for domestic battery existed until 1996. See K.S.A.1996 Sup. 21–3412(c). Consequently, Zoglman's May 1993 conviction also fell under K.S.A. 21–3412 (Ensley 1988). Before 1993, battery was classified as a class B misdemeanor. K.S.A. 21–3412 (Ensley 1988).
Battery now is a class B person misdemeanor defined as “(a) ... (1) knowingly or recklessly causing bodily harm to another person; or (2) knowingly causing physical contact with another person when done in a rude, insulting, or angry manner.” (Emphasis added.) K.S.A.2013 Supp. 21–5413. Under K.S.A.2013 Supp. 21–5414, domestic battery is: “(1) knowingly or recklessly causing bodily harm by a family or household member against a family or household member, or (2) intentionally causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.” (Emphasis added.) K.S.A.2013 Supp. 21–5414 is also a class B person misdemeanor.
The pre–1993 battery statute is very similar to the ones today classed as person crimes so there is no reason that convictions under the older statute would not be a person crime. Thus, Zoglman's battery conviction and domestic battery conviction were correctly scored as person crimes.
As for Zoglman seeking to benefit from Descamps, he clearly fails to acknowledge, as mentioned earlier, that Descamps permits a trial court to use convictions before 1993 for a sentencing enhancement provided it applied the correct analysis after properly determining whether the previous statute of conviction was either a “divisible” or “indivisible” statute. See 133 S.Ct. at 2281–83.
Moreover, in State v. Gilliland, No. 109,046, 2014 WL 1302616, at *4 (Kan.App.2014) (unpublished opinion), petition for review filed April 28, 2014, this court recently considered whether “ Descamps denies the ability to define pre–1993 convictions as person or nonperson crimes when that designation was not defined by the legislature.” This court rejected Gilliland's argument:
“We find Descamps is distinguishable and does not apply to Gilliland's fact-specific case. Here, Gilliland's pre–1993 criminal convictions for burglary (K.S.A. 21–3715 [Ensley 1981] ) and robbery (K.S.A. 21–3426 [Ensley 1981] ) easily convert to current person felonies in Kansas with no confusion. The pre–1993 crimes all occurred in Kansas, and the statutes governing Gilliland's convictions are nearly identical to the post–1993 elements for burglary and robbery, both defined as person felonies. In Descamps, the issue was the court's use of particular facts in a prior California conviction for burglary when only the elements (statutory definitions) could be considered. 133 S.Ct. at 2283. In Descamps, the district court ‘look[ed] behind’ the conviction to see if the record evidence reflected the defendant committed the generic offense of burglary, an act the court should not have done. 133 S.Ct. at 2293. The Descamps Court found the elements were not equivalent and could not be used to enhance Descamps' criminal history. 135 S.Ct. at 2292–93.
“There is no need for this court to look behind the convictions to research the facts. The conviction history described in Descamps is clearly distinguishable from Gilliland's as his prior criminal history all occurred in Kansas.” 2014 WL 1302616, at *4.
Though Gilliland is not binding precedent, given that the previous convictions at issue here also occurred in Kansas and easily convert to current person crimes without confusion, we adopt its reasoning.
Remaining Challenges to Zoglman's Prior Convictions and Sentence
In his final two issues, Zoglman contends that the trial court's imposition of a sentence in the aggravated grid box without a jury determination of the aggravating factors violated his Sixth and Fourteenth Amendment to the United States Constitution rights as interpreted by Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), and Apprendi, 530 U.S. at 466. Zoglman also argues that the State's failure to include his prior convictions in the complaint and the trial court's use of his criminal history for sentencing purposes without requiring the State to prove them before the jury beyond a reasonable doubt enhanced his sentence in violation of Apprendi. Zoglman acknowledges that our Supreme Court rejected similar arguments in State v. Johnson, 286 Kan. 824, Syl. ¶ 6, 190 P.3d 207 (2008), and State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), but includes the issues to preserve for federal review.
In Johnson, our Supreme Court held that a sentencing court does not violate Cunningham or Apprendi by sentencing a defendant to the “longest term in the presumptive grid block.” 286 Kan. at 851–52; see K.S.A. 21–4721(c)(1). Our Supreme Court recently reaffirmed Johnson in State v. Gaona, 293 Kan. 930, 958, 270 P.3d 1165 (2012). Moreover, our Supreme Court has held that the use of criminal history scores to determine a defendant's sentence is not unconstitutional under Apprendi. See Ivory, 273 Kan. at 46–48. The court recently reaffirmed Ivory in State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013).
Because the trial court sentenced Zoglman to the presumptive sentence for his aggravated battery conviction, this court lacks jurisdiction to consider an appeal of his sentence. See Johnson, 286 Kan. at 851–52. Moreover, since there is no indication that our Supreme Court is departing from either Johnson or Ivory, we must follow these controlling precedents and affirm Zoglman's sentence. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
Affirmed.