Opinion
No. 108,985.
2014-10-10
STATE of Kansas, Appellee, v. Joshua OWENS, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.Corrine E. Johnson and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Alan T. Fogleman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Corrine E. Johnson and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Alan T. Fogleman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is a direct appeal by Joshua Owens of his convictions for possession of methamphetamine and a drug pipe. He raises a combination of trial and sentencing errors. Our review of the record yields no reversible errors, and we affirm his convictions and sentence.
When Officer Brandon Holloway of the Kansas City, Kansas, Police Department stopped a Jeep for a traffic infraction in July 2011, he pulled his police car behind the vehicle and activated the emergency lights. The police dispatcher advised him that the Jeep had been reported stolen. Holloway got out of his police car and approached the passenger side of the stolen vehicle while an assisting officer, Jeremy Shepard, who had arrived in a separate police car, approached the driver's side.
As the officers approached, Joshua Owens started getting out of the passenger side. It looked like Owens was trying to get out and run away. Holloway asked Owens to put his hands up and give him his hands—Owens “refused to do so.” Holloway then attempted to detain Owens by placing his hands behind his back, but Owens started pulling away and reaching for the right pocket of his jean shorts. Holloway grabbed Owens, pushed him up against the Jeep, and placed him in handcuffs. After taking the driver into custody, Officer Shepard assisted Holloway in detaining Owens.
While conducting a pat-down for weapons, Holloway felt a set of brass knuckles in Owens' front right pocket. A subsequent search of this pocket incident to Owens' arrest for both obstruction and possession of a weapon recovered not only the brass knuckles but also a small baggie containing 0.17 grams of methamphetamine and a glass pipe with methamphetamine residue. When Holloway placed the recovered items on the hood of his car and told Officer Shepard about what he had found, Owens stated, “[C]'mon man. It's just a little bit—or, c'mon, man, dump it out. It's just a little bit. I'm already on paper.” Officer Shepard heard Owens state something to the effect of, “[C]'mon, that's just a little bit. Can't we just get rid of it?” The officers did not dump it out.
The State charged Owens with possession of methamphetamine in violation of K.S.A.2011 Supp. 21–5706(a) and possession of drug paraphernalia in violation of K.S.A.2011 Supp. 21–5709(b)(2). Before trial, Owens filed a motion to suppress all of the evidence, arguing that his detention violated the Fourth Amendment to the United States Constitution because the officer did not have reasonable suspicion to perform the pat-down search set forth in Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968). After considering the testimony of Officer Holloway, the sole witness at the suppression hearing, the trial court denied Owens' motion.
The case was tried to a jury. Owens testified in his own defense, offering a somewhat different version of events. Owens explained that he had gone swimming earlier that day and returned to his brother's house around 5:30 p.m. or 6 p.m. He claimed his shorts were still wet and that he had borrowed his brother's shorts before leaving a friend's house with “Alisha,” who did not tell him she was driving a stolen vehicle until just before the police stopped the Jeep. Owens claimed he remained in the stolen vehicle and, when asked, gave his identification to Officer Holloway, who then went back to his police car. When Holloway returned, Owens complied with Holloway's request to step out of the stolen vehicle and place his hands behind his back. Owens asserted Holloway did not have to restrain him.
Owens claimed that Officer Holloway pulled out the pipe from his front pocket first and then walked him over to the police car, where he continued to search him and retrieved the brass knuckles and drugs from his pocket. Owens then testified he did not know that any of the items Holloway found were in the shorts and that he had told Holloway “those pants aren't even mine. My shorts are in the vehicle.” To which someone responded, “[W]e've heard that before.” Owens asserted Officer Holloway had told him he was “looking for a fight. I wish you would have tried something today.” While testifying about the Wyandotte County Jail property report, Owens claimed that his wet clothes and cell phone were in the stolen vehicle and those items were never returned to him. During cross-examination, Owens conceded he had worn the pants with the items in them for at least 2 hours and that the brass knuckles were “not real light.”
The jury found Owens guilty on both counts. Based on Owens' criminal history score of A, the trial court sentenced him to the standard prison term of 40 months on count one, 12 months in jail on count two, and ordered the terms to be served concurrent to each other but consecutive to a prior sentence in case number 10CR502. The trial court then revoked Owens' probation in 10CR502, ordering him to serve the original prison term of 40 months.
Relevancy objections by the State
Owens contends the trial court committed reversible error when it sustained the State's relevancy objections to some questions asked of Officers Holloway and Shepard by the defense about whether the officers had failed to fully search and record what was found inside the stolen vehicle. He contends that this evidence was relevant to his theory of defense that he did not knowingly possess the methamphetamine and drug paraphernalia because they were found in clothing that he had borrowed from his brother.
These are important questions. A defendant is entitled to present his or her theory of defense, but this right is controlled by the statutory rules of evidence and the caselaw interpreting those rules. State v. Walters, 284 Kan. 1, Syl. ¶ 1, 159 P.3d 174 (2007). If the trial court erroneously excludes admissible evidence that is an integral part of that theory of defense, this court will find the defendant's fundamental right to a fair trial was violated. State v. Cooperwood, 282 Kan. 572, Syl. ¶ 1, 147 P.3d 125 (2006). Therefore, we must decide if these questions were relevant.
When taking testimony, a court's first consideration is relevance. By definition, evidence is relevant if it has any reasonable tendency to prove a material fact. K.S.A. 60–401(b). Evidence is probative if it has any tendency to prove any material fact. A fact is material if it has a legitimate and effective bearing on the decision of the case and is in dispute. State v. Stafford, 296 Kan. 25, 43, 290 P.3d 562 (2012).
Appellate review of materiality is de novo. State v. Ultreras, 296 Kan. 828, 857, 295 P.3d 1020 (2013).
The first objection came during Officer Holloway's cross-examination. Defense counsel asked, “And while you were there ... were you aware of whether Officer Shepard had called Crime Scene Investigation to call somebody out to take pictures[?]” Prior to the objection, Holloway had confirmed that Shepard was responsible for the inventory of the Jeep's contents prior to having it towed.
The court addressed the matter outside the presence of the jury. The State argued Owens had been charged with possession of methamphetamine, not a stolen vehicle, and whatever happened to the driver and vehicle after the initial detention based on the stolen vehicle report was not relevant to the crimes levied against Owens. Defense counsel responded by framing the issue as one of credibility and proffering that the question whether Holloway had heard if Shepard had CSI “come out and do a more thorough investigation or inventory” of the stolen vehicle was relevant to show whether “items of value” that Owens claimed belonged to him inside the stolen vehicle had gone missing. The trial court sustained the objection based on relevance.
To us, Owens argues that whether CSI was called to take pictures of the vehicle was relevant to show that he had additional clothing in the stolen vehicle that was not reported in the tow report, which would, in turn, “have supported the theory that the drugs and paraphernalia were in fact found in someone else's clothing.” But, we note that Owens did not make a proffer of his theory of defense to the trial court. This is a new ground asserted for the relevancy determination by the court.
Importantly, the State points out, “at the time the objection was made, both the court and the State believed that the defense was trying to get into how the stolen car was being investigated. The proffer shed no additional light on the point the defense was trying to make.” Our Supreme Court has ruled that a trial court's error in the exclusion of evidence cannot be predicated on a ground not presented to the trial court for its consideration. State v. Johnson, 255 Kan. 252, 256, 874 P.2d 623 (1994). Following that direction, we hold that the trial court's ruling on this objection is not reversible error. We proceed to the next objection.
After that, during the cross-examination of Officer Shepard defense counsel asked, “Since you were the one that had the female who was the driver of this reportedly stolen vehicle in custody, did you do any canvas[s] of the area—of the vehicle[?]” This question was asked after defense counsel had asked Shepard whether he had found any cell phones in the stolen vehicle or clothing in the front passenger area. Shepard did acknowledge seeing “multiple cell phones in the vehicle” but only recalled seeing a hat. The State again objected to the relevancy of the question.
Outside the presence of the jury, the State again argued the question went outside of the scope of the crimes charged. The State argued that Shepard had limited contact with Owens and that his actions related more to the driver of the stolen vehicle and were “not relevant unless there can be some sort of proffer defense that [the driver] had any contact with that methamphetamine.”
Defense counsel acknowledged the trial court's prior ruling but asserted that he was just asking whether Shepard had found personal items that could have belonged to Owens. The trial court sustained the objection, stating, “Well, once again, it's outside the scope of the direct. It's not relevant or probative in this Court's opinion.” Defense counsel persisted, contending that the evidence could become relevant and finally proffered that Owens would testify, “[H]e's wearing somebody else's pants.” The trial court sustained the objection again.
This ruling was an error. Since Owens finally told the court the theory of his defense, a material factual dispute arose. To prove possession, the State had the burden of showing Owens had “joint or exclusive control over an item with knowledge of and intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.” (Emphasis added.) K.S.A.2011 Supp. 21–5701(q). Whether Owens had knowledge of the items in his pocket because he allegedly was wearing his brother's shorts at the time of his arrest was clearly material to his guilt or innocence. If he was wearing some other person's clothes, Owens perhaps was unaware of the methamphetamine and pipe that were in the pockets. Thus, the question whether Shepard had searched the stolen vehicle and found Owens' wet clothing was probative of that material fact. Accordingly, we conclude that the trial court erred in denying Owens' request to question Shepard whether he had canvassed the items within the Jeep. We now look to see if this error is harmless.
Even if we apply the more rigorous federal constitutional harmless error standard, we conclude the error was harmless. Under that standard, we will declare a constitutional error harmless only where the party benefitting from the error persuades the court “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
In reviewing the erroneous exclusion of evidence for harmless error, our Supreme Court has held that an appellate court can consider: “[T]he importance of the witness' testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the case.” Ultreras, 296 Kan. 828, Syl. ¶ 11.
Owens contends that had Officer Shepard's response to his question indicated a failure to canvass the vehicle, the jury may have believed Owens did have his own clothes in the stolen vehicle, and “it would supported [ sic ] the inference that he had previously been swimming in his own clothes, and that the clothes he was wearing were in fact borrowed.”
Several reasons lead us to conclude that any damage from this error was minimal. First, Owens did not dispute that the drugs and drug paraphernalia were found in his pocket. Second, because the record indicates Shepard had already testified prior to the State's relevancy objection that he did not observe any clothing in the passenger side of the stolen vehicle, that does not mean further clarification or cumulative testimony would have affected the outcome of the trial. That information was given to the jury. See Ultreras, 296 Kan. 828, Syl. ¶ 11. Third, defense counsel was not prohibited from asking Owens questions to establish whether there were other clothes in the stolen vehicle or making a similar argument during closing. Finally, Owens' theory of defense was at odds with the officers' testimony that Owens had made incriminating statements once Officer Holloway found the items in his pocket. Such testimony contradicted Owens' testimony on the very material point in dispute. See Ultreras, 296 Kan. 828, Syl. ¶ 11. Moreover, assessing the credibility of the witnesses is the responsibility of the jury, not appellate courts. See State v. Llamas, 298 Kan. 246, 254, 311 P.3d 399 (2013).
Given the nature of the excluded evidence and the testimony at trial, the exclusion of Officer Shepard's cumulative testimony was harmless beyond a reasonable doubt. See Ward, 292 Kan. 541, Syl. ¶ 6.
Uncharged crime evidence
Pointing to the testimony of Officer Holloway stating he found brass knuckles during the pat-down search, Owens now contends that according to K.S.A.2011 Supp. 60–455, a limiting instruction was necessary to advise the jury that such evidence of an uncharged crime was admitted for a limited purpose. Indeed, Owens was not charged with a weapons crime, and possession of brass knuckles is a violation of K.S.A.2011 Supp. 21–6302(a)(1). In reply, the State argues that only if uncharged crime evidence is offered under K.S.A.2011 Supp. 60–455, then a limiting instruction is proper and since this evidence was not admitted according to 60–455, then no limiting instruction was necessary.
Owens did not request a limiting instruction at trial. Nonetheless, a defendant can challenge the lack of a K.S.A.2011 Supp. 60–455(b) limiting instruction as clearly erroneous even if that defendant did not object to the admission of the other crimes evidence at trial. State v. Breeden, 297 Kan. 567, 579–80, 304 P.3d 660 (2013).
When addressing such questions, we review the entire record to determine whether an instruction was legally and factually appropriate under K.S.A.2011 Supp. 60–455. If there is an error, we then review the entire record again 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. As the party claiming error in the instructions, Owens has the burden to prove the prejudice necessary for reversal. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013).
Interestingly, Owens concedes in his brief that the evidence “is probably admissible” but makes the general argument that “the jury should have been told to limit its consideration to that proper purpose.” (Emphasis added.) But Owens fails to identify either “that proper purpose” or the material facts under K.S.A.2011 Supp. 60–455 for which the evidence could have been admitted.
Also, Owens' brief fails to inform us what limiting instruction he claims the trial court should have given. He contends that without a limiting instruction, the jury may have considered the evidence relevant to his own credibility and the jury may not have believed his testimony “that the pants he was wearing were not his.” Limiting instructions vary from case to case because they give specific directions to the jury on the narrow reasons for the admission of normally inadmissible evidence. A scattergun instruction is insufficient. See State v. Donnelson, 219 Kan. 772, 777, 549 P.2d 964 (1976).
Our review of the record reveals that when Officer Holloway found the brass knuckles in Owens' pocket, he arrested him for that crime and then discovered the contraband, the drugs and the pipe, while completing a search incident to the arrest. The State never charged Owens with possession of the brass knuckles; thus, Holloway's comments were evidence of an uncharged crime, and according to K.S.A.2011 Supp. 60–455, admission of such evidence must be for one or more of the limited purposes listed in that statute. Thus, we conclude there was error here. We turn then to determine if the error is harmless.
Applying the clearly erroneous standard of review to this case, we are firmly convinced that the jury would not have reached a different verdict had a limiting instruction been given. The drugs and the pipe were found in the pants Owens was wearing. He admitted wearing the pants for 2 hours before his arrest. After the discovery of the drugs, unprompted, Owens asked Holloway to dump out the drugs because there was just a little and he was already “on paper,” The giving of a limiting instruction would not have changed this verdict.
Motion to suppress
Owens attacks the ruling on his motion to suppress by arguing the State never proved that Officer Holloway took actions that could be construed as an attempt to arrest; therefore, Owens' detention was unlawful and any evidence gleaned from the detention must be suppressed.
In denying the motion to suppress, the trial court first found that the undisputed evidence showed Holloway had probable cause to stop the vehicle for a traffic violation. The trial court then found that the initial pat-down search of Owens' right pocket was permissible for the officer's safety based on the following facts:
(1) the stolen vehicle report, which Holloway learned of before exiting the vehicle, caused a security risk or volatile situation;
(2) Owens started getting out of the car without being asked;
(3) Owens disobeyed Holloway's commands and kept reaching for his right pocket; and,
(4) Owens resisted Holloway's attempt to arrest and detain him to investigate the stolen vehicle.
The trial court also found that the drugs and pipe were lawfully seized incident to the arrest for obstruction and carrying the brass knuckles.
For questions such as this we review the trial court's findings of fact to determine if they are supported by substantial competent evidence. If they are, then we examine the final legal conclusion without limitation. See State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).
Kansas courts have grouped encounters between police and citizens into four types: voluntary encounters, investigatory stops, public safety stops, and arrests. State v. McCaddon, 39 Kan.App.2d 839, 841, 185 P.3d 309 (2008). Here, neither party disputes the validity of the initial traffic stop. A traffic violation provides an objectively valid reason for conducting a traffic stop. See State v. Coleman, 292 Kan. 813, 818, 257 P.3d 320 (2011). But once Officer Holloway received the dispatcher's report that the Jeep was reported stolen, a criminal investigation began and the encounter became a safety search performed during an investigatory detention.
Our Supreme Court has described an investigatory detention as:
“The second type is an investigatory detention or Terry stop, in which an officer may detain any person in a public place if the officer reasonably suspects that the person is committing, has committed, or is about to commit a crime. [Citations omitted.] During a Terry stop the officer is allowed to frisk the person seized for weapons if necessary for the officer's personal safety. [Citation omitted.]” State v. Hill, 281 Kan. 136, 141, 130 P.3d 1 (2006).
Such an encounter also activates the following statutory provisions of K.S.A. 22–2402:
“(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that such officer's personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, such officer may take and keep it until the completion of the questioning, at which time such officer shall either return it, if lawfully possessed, or arrest such person.”
Owens relies on State v. Thompson, 284 Kan. 763, 166 P.3d 1015 (2007), a traffic stop case which Owens claims “established the general proposition that citizens do not have to obey directions from police officers unless accompanied by coercive tactics that constitute a clear show of authority.” That is not helpful in this case. The issue in Thompson was the scope and duration of a routine traffic stop, not the safety concerns of an officer who was conducting a valid Terry stop.
We hold it was clear that because of the information Holloway received from the dispatcher before getting out of his police car, there was a factual basis for him to reasonably suspect that anyone inside the vehicle he had pulled over for the traffic violation was involved in the theft of that same vehicle. In other words, Holloway had a reasonable and articulable suspicion to detain Owens or anyone else in the stolen vehicle to conduct an investigation of that vehicle. See State v. Thomas, 291 Kan. 676, 687, 246 P.3d 678 (2011). Accordingly, because a valid Terry stop clearly existed here, the dispositive question becomes whether it was reasonable for Holloway to pat down Owens for his own personal safety.
What must be shown to justify an officer's pat-down search for safety was set out in Terry as follows:
“The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime, ...
“Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations omitted.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. [Citation omitted.]” 392 U.S. 1, 26–27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
At the suppression hearing, Holloway testified that based on his experience, he was concerned for his safety when dealing with individuals in a stolen vehicle. The remaining facts add additional support to Holloway's reasonable suspicion that it was necessary to pat down Owens.
The record indicates Holloway had activated his emergency equipment before approaching the stolen vehicle. Before Holloway could even inform the occupants that the vehicle had been reported stolen, Owens was exiting the vehicle without being told. Despite Holloway identifying himself as a police officer, Owens repeatedly refused to obey his commands to put his hands behind his back and, instead, kept reaching for his right pocket. Given Owens' actions, Holloway had no choice but to physically force Owens to comply and place him in handcuffs. Holloway testified Owens was under arrest for obstruction and resisting once he placed the handcuffs on Owens and that he conducted the Terry frisk subsequent to this arrest. Because Owens was a suspect in a stolen vehicle whose extensive physical movements disobeying Holloway were of such a suspicious and threatening nature, Holloway's personal safety required the pat-down search of Owens for firearms or other dangerous weapons.
The trial court correctly denied the suppression motion.
Since we have found the only two trial errors harmless, we reject Owens' cumulative error claim. To the extent that more than one error may have occurred, we observe that cumulative trial error requires reversal when the totality of the circumstances substantially prejudiced Owens and denied him a fair trial. The errors were harmless, both singly and collectively. The totality of the circumstances did not substantially prejudice Owens and deny him a fair trial. See State v. Houston, 289 Kan. 252, 277–78, 213 P .3d 728 (2009). We now turn to the claimed sentencing errors.
Special sentencing rule
Owens challenges his consecutive sentence by claiming that the special rule under K.S.A.2011 Supp. 21–6606(c) did not apply. That rule requires that sentences for crimes committed by those already on probation must be served consecutively. Owens reasons that because he committed the crimes in this case before he had reported to his probation officer in a prior case, he was not yet “subject to the supervision of the probation service.” See K.S.A.2011 Supp. 21–6603(g).
The trial court sentenced Owens in his prior case, 10CR502, on October 22, 2010, to a dispositional departure sentence of 18 months' probation. According to Owens, once the trial court placed him on probation in 10CR502 he was sent to Missouri where he served approximately 6 months in Missouri and, then, when he was released he was arrested on this case before his first scheduled visit to his probation officer.
K.S.A.2011 Supp. 21–6603(g) does not state that a defendant must first report to probation services in order for a defendant's probation to begin. Under the plain terms of the statute, all that is required is the defendant be subject to supervision during the probation period. The phrase “subject to” is defined as follows: “Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for.” Black's Law Dictionary 1425 (6th ed.1990). Owens' statements during sentencing reflect an acknowledgment that he knew he was on probation and was affected by probation services while on probation.
The mere fact that Owens had yet to meet with his probation officer when he committed a new crime does not mean he was not under the control of probation services from the time he received his probation sentence. To construe the statute otherwise would create a situation in which a probationer has every incentive to delay or not show up to his or her first appointment with probation services to be rewarded by not having to serve a mandatory consecutive sentence under K.S.A.2011 Supp. 21–6606(c). The courts must construe statutes to avoid unreasonable or absurd results. State v.. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 (2012). The trial court did not err in applying the special rule under K.S.A.2011 Supp. 21–6606(c) and ordering the mandatory consecutive sentence.
Criminal history
For his final issue, Owens appeals the trial court's determination of his criminal history score. Owens maintains that the PSI report erroneously listed a 2006 Missouri conviction for resisting arrest in violation of Mo, Rev. Stat. § 575.150 (2003) as a person felony rather than a nonperson felony, resulting in a criminal history score of A when it should have been B. We note the PSI uses an incorrect number—575.120.
The record indicates at a hearing prior to sentencing in 10CR502 (the prior case that he was on probation for when this crime was committed), defense counsel reviewed Owens' criminal history with him and then challenged the 2006 Missouri conviction. The trial court continued the matter for the State to address the challenge. The next month at the sentencing hearing in 10CR502, defense counsel withdrew the challenge. Defense counsel indicated to the trial court Owens had initially contended the 2006 Missouri conviction was a nonperson felony but ultimately conceded, “I believe that the State has compared the language and it compares as a—I think kind of comes as a person felony. It matches our statute for person felony.” Owens then orally agreed, stating, “I was under the impression that my criminal history wasn't what it is and I was just mistaken.” The record does not indicate Owens filed a direct appeal or motion challenging the legality of his sentence in case 10CR502.
In this case, defense counsel discussed the PSI report at sentencing by pointing out a typographical error and by acknowledging the prior unsuccessful attempt in 10CR502 to challenge the 2006 Missouri conviction as a nonperson felony, stating, “But that was determined at that time I believe. So other than that [typographical] change, that's all we have with regard to the PSI.” The trial court asked Owens whether there was any legal cause or reason that it should not proceed with sentencing, and he responded, “No, sir.”
A defendant has the opportunity to challenge his or her criminal history classification when the PSI report is filed with the court before sentencing. Challenges at that point place the burden on the State to prove the criminal history. Once the criminal history is established, the law shifts the burden of proof to the offender to prove by a preponderance of the evidence a differing criminal history. K.S.A.2011 Supp. 21–6814(c). Owens presented no argument or evidence about his criminal history at his sentencing. Given his prior stipulation in case 10CR502 and subsequent failure to pursue any objections to his criminal history in this case by using K.S.A.2011 Supp. 21–6814(c), we hold he has waived any objection and this issue is not properly before us.
Affirmed.