Opinion
111,292.
06-12-2015
STATE of Kansas, Appellee, v. Thomas Michael PACELLI, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jeremy J. Crist, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Jeremy J. Crist, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Thomas Michael Pacelli appeals following his conviction for obstruction of official duty. He argues: (1) The evidence was insufficient to support his conviction, (2) the district court provided an inadequate response to a question posed by the jury during deliberations, (3) the district court violated his statutory and constitutional rights by answering the jury's question in writing and by allowing the jury to view an exhibit outside of his presence, and (4) he was improperly charged with, convicted of, and sentenced for a felony crime.
Facts
On the afternoon of May 11, 2013, Riley County Police Officer Tanner Monroe was on routine patrol and stopped by a boat ramp near Ogden and Highway K18 to complete some paperwork. Monroe observed a white Dodge Stratus that he had reason to believe belonged to Pacelli's girlfriend, Korine Pearson. Knowing that there was an active warrant for Pacelli's arrest, Monroe confirmed that the car belonged to Pearson and called for backup. Officer Logan Swartz responded to the scene and after confirming that the Stratus was unoccupied, the two officers then walked toward a beach area near the boat ramp. Both officers were wearing blue police uniforms and were armed with their side arms and Tasers.
While walking on the beach, the officers observed Pacelli lying on a blanket with an infant, a woman, and a dog. Although it was a warm, sunny day, Pacelli was wearing a hooded sweatshirt, jeans, and a ball cap worn low over his face. Upon seeing the officers, Pacelli immediately took off running. Monroe shouted, “ ‘Police. Stop,’ “ but Pacelli continued to run toward a heavily wooded area full of undergrowth and downed tree limbs. Monroe chased Pacelli on foot, while Swartz took a different route in an attempt to cut Pacelli off. Monroe first ran through the sand on the beach and then entered the wooded area. Monroe initially lost sight of Pacelli but tried to follow the sound of his footsteps. At some point, Pacelli tripped and fell down. As Pacelli attempted to get up, both officers closed in with their Tasers drawn and were able to apprehend Pacelli without incident.
The State subsequently charged Pacelli with one count of felony obstruction of official duty. At trial, Pacelli testified that he had known about the warrant for a couple of months and that he panicked and ran when he saw the officers. Pacelli stated that after he tripped and fell, he “realized what was happening” and surrendered. A jury convicted Pacelli as charged. The district court imposed a dispositional departure sentence of 18 months' probation and ordered Pacelli to serve 60 days in jail as a condition of his probation. Pacelli timely appeals.
Analysis
Pacelli raises four issues on appeal: (1) The evidence was insufficient to support his conviction, (2) the district court provided an inadequate response to a question posed by the jury during deliberations, (3) the district court violated his statutory and constitutional rights by answering the jury's question in writing and by allowing the jury to view an exhibit outside of his presence, and (4) he was improperly charged with, convicted of, and sentenced for a felony crime. We address each of these issues in turn.
1. Sufficiency of the evidence
Pacelli claims the evidence was insufficient to support his conviction because his actions fell short of substantially hindering or increasing Monroe's burden in carrying out his official duty of executing the arrest warrant.
An appellate court's standard of review for a challenge to the sufficiency of the evidence in a criminal case is
“whether, after reviewing all the evidence in a light most favorable to the prosecution, the reviewing court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility.” State v. Lloyd, 299 Kan. 620, Syl. ¶ 3, 325 P.3d 1122 (2014).
The State charged Pacelli with violating K.S.A.2011 Supp. 21–5904(a)(2), which at that time defined the crime of “[i]nterference with law enforcement” by obstruction of official duty as “knowingly obstructing, resisting or opposing any person authorized by law ... in the discharge of any official duty.”
Whether a defendant obstructed official duty depends on the facts of each case. State v. Lee, 242 Kan. 38, 41, 744 P.2d 845 (1987). To sustain a conviction, the State must prove: (1) The person obstructed was an identified law enforcement officer carrying out an official duty; (2) the defendant knowingly obstructed or opposed that officer in the performance of that duty; (3) the defendant knew or should have known the person he or she opposed was a law enforcement officer; and (4) the defendant's action substantially hindered or increased the burden of the officer in carrying out his or her official duty. See K.S.A.2011 Supp. 21–5904(a)(2) ; State v. Parker, 236 Kan. 353, 364–65, 690 P.2d 1353 (1984). The district court provided the jury with an instruction consistent with these elements and directed the jury that the State was required to prove each of these elements in order to establish that Pacelli had obstructed Officer Monroe in discharging an official duty.
There is no dispute relating to the first three elements. Monroe was an identified law enforcement officer attempting to discharge his official duty of executing an arrest warrant. And Pacelli knew Monroe was a police officer when he fled and willfully refused to stop when Monroe told him to do so. But Pacelli asserts there was insufficient evidence to establish the fourth element, arguing that his actions did not substantially hinder or increase Monroe's burden in carrying out his official duty. Specifically, he contends there was conflicting testimony regarding the length and distance of the chase and notes that Monroe testified Pacelli's actions only made his duties “ ‘a little more difficult.’ “
Regardless of the length of the chase, however, Kansas courts have broadly interpreted the obstruction statute: “ ‘[T]o obstruct is to interpose obstacles or impediments, to hinder, impede or in any manner interrupt or prevent, and this term does not necessarily imply the employment of direct force, or the exercise of direct means.’ “ Lee, 242 Kan. at 40. This definition includes Pacelli's conduct in the present case. See State v. Gasser, 223 Kan. 24, 30, 574 P.2d 146 (1977) (breaking away and running from agent unlawful under obstruction statute); State v. Beltran, 48 Kan.App.2d 857, 877, 300 P.3d 92 (disregarding law enforcement's order to stop may violate obstruction statute), rev. denied 298 Kan. –––– (December 27, 2013); State v. Logan, 8 Kan.App.2d 232, 233, 654 P.2d 492 (1982) (defendant properly convicted of obstruction when he refused to stay in police station when ordered to do so by an arresting officer on crutches), rev. denied 232 Kan. 876 (1983).
Pacelli continued to run from law enforcement even after Monroe told him to stop. Monroe testified that Pacelli's actions forced him to run through sand and a very dense wooded area while wearing a 25–pound duty belt, vest, and boots. The wooded area was “like a maze” and contained tree stumps that created obstacles. Pacelli showed no signs of stopping or heeding Monroe's commands before he tripped and fell. Although Monroe did state that Pacelli's act of running made his duty “a little more difficult,” Monroe also testified that Pacelli's actions were not normal and went “above and beyond” the normal experience when serving an arrest warrant. Officer Swartz agreed that this was not a typical experience.
Viewing the testimony outlined above in the light most favorable to the State, a rational factfinder could have found beyond a reasonable doubt that Pacelli substantially hindered or increased Monroe's burden in carrying out his official duty.
2. Response to jury question
After the jury retired for deliberations, it submitted a question about the third element of jury instruction 4, which set forth the elements of the obstruction charge. The third element of this instruction required the State to prove that “[t]he act of the Defendant substantially hindered or increased the burden of the officer in the performance of the officer's official duty.” The jury's question read: “Instruction # 4, Sub # 3 Does the word substantially apply to the words increased burden as well.”
Before responding to the jury's question, the district court allowed counsel to suggest responses. The State proposed “something along the lines to the jury that Element 3 stands on its own, the wording stands on its own, and they are to use their common understanding to determine what it means.” On the other hand, defense counsel suggested the jury be instructed “that substantial applies both to the hindrance—the burden of the hindrance as well as to the increasing of the burden.... Substantial would reflect back to both the increase and the hindrance.” The district court ultimately instructed the jury to refer back to the language of the instructions and apply its common understanding thereto. Pacelli contends the district court's response to the jury's question was both legally incorrect and insufficient.
After a jury has retired for deliberation, it may seek additional information on a point of law from the district court. K.S.A.2014 Supp. 22–3420(d). The Kansas Supreme Court has set forth the following standard of review relating to such matters:
“A trial court may not ignore a jury's request submitted pursuant to K.S.A. 22–3420(3) [the relevant statutory provision prior to its 2014 amendment] but must respond in some meaningful manner or seek additional clarification or limitation of the request. It is only when the trial court makes no attempt to provide a meaningful response to an appropriate request or gives an erroneous response that the mandatory requirement of K.S.A. 22–3420(3) is breached. Once the trial court attempts to give an enlightening response to a jury's request or seeks additional clarification or limitation of the request, then any issue as to the sufficiency or propriety of the response is one of abuse of discretion by the trial court.”State v. Boyd, 257 Kan. 82, Syl. ¶ 2, 891 P.2d 358 (1995).
Our court has indicated that this passage from Boyd suggests a two-step analysis to review a district court's application of K.S.A. 22–3420(3). First, we conduct a de novo review to determine if the district court failed to respond to the jury's question or provided a response to the question that was legally incorrect. If the district court did respond and the response did not affirmatively misstate the law, we utilize an abuse of discretion standard to evaluate the sufficiency or propriety of the response. See State v. Jones, 41 Kan.App.2d 714, 722, 205 P.3d 779 (2009), rev. denied 290 Kan. 1099 (2010).
a. Legally incorrect
Although Pacelli concedes the district court provided a response to the jury's question, he alleges the response was an incorrect statement of the law. Specifically, Pacelli asserts the legally correct response to the question posed by the jury was “yes” because the word “substantial” does, in fact, modify both “ ‘hindered” ’ and “ ‘increased the burden.’ “ For support, he relies on Parker, where our Supreme Court concluded that the evidence was insufficient to prove the defendant had committed the offense of obstruction of official duty because the defendant's response to law enforcement's questioning “did not substantially increase the burden” placed upon law enforcement. 236 Kan. at 366.
The instruction at issue required the State to prove, in part, that “[t]he act of the Defendant substantially hindered or increased the burden of the officer in the performance of the officer's official duty.” Applying basic rules of grammar, we agree with Pacelli that the word “substantially” modified both “hindered” and “increased the burden” in the instruction provided to the jury. Specifically, the word “substantially” is an adverb. Because the adverb was placed before two verbs used in the disjunctive (or), common sense tells us that this adverb necessarily modifies the two verbs following it, both of which describe the activities designated in the statute as unlawful. Based on a common-sense application of the rules of grammar then, a response of “yes” by the court to the jury's question would have been legally correct. But the response provided to the jury by the court also was legally correct. The court instructed the jury to “apply your common understanding.” Using basic rules of grammar, we already have determined that a plain reading of the instruction would have led the jury to conclude that the adverb “substantially” modified both “hindered” and “increased the burden.” Thus, we cannot say that the district court's response referring the jury back to the instructions was legally incorrect, as would have been the case if the court had responded “no.”
b. Sufficiency of the response
Having determined the district court's response referring the jury back to the instructions was correct as a matter of law, we utilize an abuse of discretion standard to evaluate the sufficiency or propriety of the response. A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
Pacelli argues that the court's response directing the jury back to the original instructions was tantamount to ignoring the jury's question and therefore constitutes a breach of the court's statutory duty to respond to the jury's question in some meaningful manner. Based on the Supreme Court's holding in Boyd, however, “[i]t is only when the trial court makes no attempt to provide a meaningful response to an appropriate request ... that the mandatory requirement of K.S.A. 22–3420(3) is breached.” (Emphasis added.) Boyd, 257 Kan. 82, Syl. ¶ 2. Upon review of the evidentiary record here, we find the district court's attempt to give an enlightening response to the jury's question was sufficient. The district court read the question aloud and permitted counsel to suggest responses. The State argued in favor of referring the jury back to the instructions and directing them to use common sense. Pacelli's counsel argued in favor of what amounts to a basic grammar lesson on the function and placement of adverbs. The district court ultimately instructed the jury to apply common sense in considering all of the instructions together. Although a response instructing the jury that the adverb “substantially” modified both of the verbs following it may have been more helpful for the jury, we find the court attempted to provide a meaningful response to the jury's question and therefore did not breach its statutory duty to do so. As such, the court did not abuse its discretion by referring the jury back to the instructions with directions to apply its common understanding to the language contained therein. See State v. Novotny, 297 Kan. 1174, 1186, 307 P.3d 1278 (2013) ; State v. Wade, 295 Kan. 916, 923, 287 P.3d 237 (2012) (approving “the tack of simply directing the jury's attention back to the instructions”).
c. Other statutory and constitutional rights
Pacelli also argues that the district court's response to the jury's question violated his constitutional rights to due process and a fair trial because the evidence presented at trial may not have been sufficient to support a finding of guilt under the correct standard. Specifically, Pacelli alleges that the response allowed the jury to find him guilty based on a finding that he merely increased the burden of law enforcement, not that he “substantially” increased the burden. Pacelli cites to a letter written by one of the jurors and sent to the district court judge after the trial, claiming that this is exactly what occurred. In a related argument, Pacelli briefly claims that the district court's response also compromised his right to a unanimous jury verdict under K.S.A. 22–3421 because the jury may not have been unanimous in applying the correct legal standard of proof.
However, these claims lack merit because the evidence presented at trial, as set forth above, was sufficient to support a finding that Pacelli both substantially hindered Monroe and substantially increased Monroe's burden of carrying out his official duty. Moreover, Pacelli's argument requires this court to speculate about the jurors' thought processes during deliberations. It is not the proper function of an appellate court to speculate about a jury's deliberations or delve into the thought processes engaged in by the jury during its deliberations. See State v. Beach, 275 Kan. 603, 618–19, 67 P.3d 121 (2003).
3. Right to be present at all critical stages of trial
Pacelli argues that the district court violated his constitutional and statutory rights to be present at all critical stages of the trial by (a) answering the jury's question in writing rather than in his presence and (b) allowing the jury to take a trial exhibit to the jury room during deliberations. Pacelli's arguments raise an issue of law over which this court exercises unlimited review. State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014).
a. Jury's question
As previously explained, the jury forwarded a written question to the district court during deliberations, which the court discussed with counsel, in Pacelli's presence, before formulating a written answer that was then returned to the jury by the bailiff.
Pacelli asserts that the district court's written answer violated his constitutional and statutory rights to be present at every critical stage of his trial, arguing that he should have been present when the court actually communicated the answer to the jury under K.S.A. 22–3420(3) and the Sixth Amendment to the United States Constitution.
But Pacelli's argument that the district court violated the statutory requirements of K.S.A. 22–3420(3) is undercut by amendments made to that statute in 2014. See L.2014, ch. 102, sec. 7. Although the statute was amended after Pacelli's trial, the legislature specifically provided that the amendments establish “a procedural rule, and as such shall be construed and applied retroactively.” K.S.A.2014 Supp. 22–3420(f). Under the 2014 statutory amendments, the court may respond to jury questions either “in open court or in writing. ” (Emphasis added.) K.S.A.2014 Supp. 22–3420(d). Accordingly, the district court did not violate Pacelli's statutory rights in responding to the jury's question.
The statutory changes, however, do not affect Pacelli's constitutional argument that the district court violated his right to be present at every critical stage of his trial. The Kansas Supreme Court recently considered a court's written answer to a jury question in Verser, 299 Kan. at 787–90. The court first noted that a defendant can argue for the first time on appeal that a written response to a jury question violated his or her right to be present because the right to be present is personal to the defendant and cannot be waived by counsel's failure to object at trial. 299 Kan. at 788. The court then held that jury questions about the law or evidence in the case must be answered in open court (unless the defendant is voluntarily absent) and that a written answer violates the defendant's right to be present under the Sixth Amendment. 299 Kan. at 787–88. Thus, under Verser, the way the court's answer was delivered to the jury in Pacelli's case violated his constitutional right to be present at every critical stage of his trial even though he was present when the court discussed the jury's question with the attorneys and decided on its answer to the question.
The federal constitutional harmless error standard applies to violations of federal constitutional rights. Verser, 299 Kan. at 789. Under this standard, the written answer constituted harmless error if this court finds beyond a reasonable doubt that it did not affect the outcome of the trial in light of the entire record—that there is “ ‘no reasonable possibility that [it] contributed to the verdict.’ “ 299 Kan. at 789 (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011], cert. denied 132 S.Ct. 1594 [2012] ). Appellate courts apply four factors to determine whether a judge's written answer is harmless under the constitutional standard:
“ ‘(1) the overall strength of the prosecution's case; (2) whether an objection was lodged; (3) whether the ex parte communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error.” ’ Verser, 299 Kan. at 789–90.
See State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 (1998) (setting out the four factors for considering whether a court's communication with the jury outside the presence of the defendant is harmless error).
With respect to the first factor, the State's case against Pacelli—as outlined above—was strong. With respect to the second factor, Pacelli did not object to the district court's method of communicating with the jury. With respect to the third factor, Kansas courts generally have considered written answers to jury questions as being less critical than detailed jury communications such as reading back trial testimony. See State v. Womelsdorf, 47 Kan.App.2d 307, 322–24, 274 P.3d 662 (2012), rev. denied 291 Kan. 1256 (2013). And, as discussed above, the district court's response did not misstate the controlling law but instead directed the jury to follow the instructions it had already provided. See Verser, 299 Kan. at 789–90 (providing that a nonsubstantive answer to a jury question—that material the jury had asked to review had not been admitted into evidence—favored a harmless error finding); State v. Carter, No. 109,966, 2014 WL 3907095, at *4 (Kan.App.2014) (unpublished opinion) (written answer that rephrased a jury instruction favored a harmless error finding), petition for rev. filed September 8, 2014. With respect to the final factor, the record on appeal does not indicate that Pacelli pursued any posttrial remedies to correct the court's procedural error.
Consideration of the four McGinnes factors lead us to characterize any error as harmless. The State's case against Pacelli was strong, he failed to object to the procedure at trial, the court's answer was innocuous, and Pacelli did not address the procedural error with his posttrial motions, which prevented the district court and this court from fully exploring any actual harm. Accordingly, we conclude that there is no reasonable possibility that the district court's failure to read the response to the jury's question in Pacelli's presence in open court impacted the jury's verdict.
b. Exhibit
Pacelli also argues that the district court violated his constitutional and statutory rights to be present at all critical stages of the trial when it allowed the jury to take a trial exhibit into the jury room during deliberations.
At trial, the district court admitted into evidence State's Exhibit 1, an aerial photograph of the Ogden boat ramp. Prior to deliberations, the court informed the jury that it would receive the jury instructions and the exhibit. Although Pacelli did not object to the district court's release of the exhibit to the jury, this court may review his argument, raised for the first time on appeal, that it violated his right to be present. See Verser, 299 Kan. at 788 (the right to be present is personal and cannot be waived by counsel's failure to object at trial).
Again, Pacelli's statutory argument is controlled by the 2014 statutory amendments, which are applied retroactively. See K.S.A.2014 Supp. 22–3420(f). The statute now provides: “In the court's discretion, upon the jury's retiring for deliberation, the jury may take any admitted exhibits into the jury room, where they may review them without further permission from the court.” K.S.A.2014 Supp. 22–3420(c). Thus, Pacelli's claim of statutory error fails.
Although Pacelli does not make a specific constitutional claim separate from his statutory argument, he cites to State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013), as support for his assertion that a defendant has the right to be present when evidence is exhibited to the jury—even after the jury has begun deliberations. In Herbel, the defendant was on trial for sex crimes against a child. He had given a videotaped interview to law enforcement officers that contained highly incriminating admissions. He also provided a similar written statement. The prosecution played the videotape during its case against the defendant, and both the videotape and the written statement were admitted into evidence. During deliberations, the jurors wanted to review parts of the videotaped interview. The district court met with the jurors in the courtroom and asked the presiding juror to describe what they wanted to look at. Those portions of the interview were replayed for the jurors. The district court then asked the presiding juror if the replay was sufficient or if there were other portions of the interview they wished to see. The presiding juror indicated the jurors had seen what they needed. The jury returned with a split verdict about 25 minutes later convicting the defendant of one count of rape and one count of aggravated indecent liberties with a child while acquitting him of a second count of rape.
On appeal, the defendant challenged the district court's handling of the jurors' request to view portions of the videotaped statement. At the outset of its legal analysis, the Kansas Supreme Court noted that the record was silent as to whether the defendant or his counsel was present during the district court's communication with the jurors about the videotaped interview and the replay of the requested portions of the interview. Without an affirmative statement on the record that the defendant was present or some equivalent indication, the court concluded the defendant was absent, determined the interaction between the court and the jury to be a critical stage in the proceedings, and found the interaction tantamount to constitutional error. Applying the constitutional harmless error analysis, however, the court found the error harmless beyond a reasonable doubt. 296 Kan. at 1115.
Pacelli argues that because the exhibit was released to the jury during deliberations, the evidence here, like in Herbel, was exhibited to the jury outside of his presence. But the Herbel court specifically analyzed the constitutional violation based on the district court's communication with the jurors, not on the actual display of the videotape outside of the defendant's presence. Unlike Herbel, the record here does not show any communication between the district court and the deliberating jurors outside Pacelli's presence, and Pacelli does not allege any such communication occurred. His only complaint is that he was not present when the photographic evidence was exhibited to the jury. But the record reflects that the photograph was admitted into evidence without objection from Pacelli, and all meaningful communication about the photograph occurred in open court in Pacelli's presence. Under these circumstances, the jurors' review of the trial exhibit was not a critical stage of the proceeding at which Pacelli had a constitutional right to be present personally or through counsel. See State v. Fenton, 228 Kan. 658, 667, 620 P.2d 813 (1980) (“Once a case is submitted to the jury for deliberations, the jury is ordinarily given the exhibits to take into the jury room where the jurors can examine the exhibits as many times as they desire.”).
4. Felony obstruction
Pacelli argues that he should not have been charged with, convicted of, or sentenced for felony obstruction of official duty because the act which resulted in the issuance of the warrant for his arrest—failure to appear at a probation revocation hearing—was not a felony.
As a preliminary matter, Pacelli did not raise this argument below. Generally, issues not raised before the district court cannot be raised for the first time on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are, however, some exceptions to this preservation rule. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). But the burden is on the appellant to explain why an issue is properly before an appellate court when it was not raised below. Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40). The failure to do so can result in the dismissal of the appeal. In fact, a recent decision by our Supreme Court indicates our courts must now strictly apply this rule. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (“Future litigants should consider this a warning and comply with Rule 6.02 [a][5] by explaining why an issue is properly before the court if it was not raised below—or risk a ruling that an issue improperly briefed will be deemed waived or abandoned.”). Pacelli does not acknowledge that he failed to raise this argument below or otherwise allege why the issue should be considered for the first time on appeal. Therefore, we could find that Pacelli's argument is not properly before this court for review.
But even if we were to reach the merits of the issue, Pacelli is still not entitled to relief. The crime of obstructing official duty may be classified as either a felony or a misdemeanor. See K.S .A.2011 Supp. 21–5904(b)(2)(A) and (b)(2)(B). Relevant here, the crime is classified as a “severity level 9 nonperson felony in the case of a felony, or resulting from parole or any authorized disposition for a felony. ” (Emphasis added.) K.S.A.2011 Supp. 21–5904(b)(2)(A). Whether Pacelli could be charged with felony obstruction is controlled by State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997). There, the court held:
“The touchstone for the classification of the [obstruction] offense is the reason for the officer's approaching the defendant who then flees or otherwise resists, and not the status of the defendant. Thus ... the classification under [the statute] depends on what the officer believed his [or her] duty to be as he [or she] discharged it.” 261 Kan. at 538–39.
Because the officer in Hudson attempted to stop the defendant for a traffic violation but ended up chasing the defendant after he attempted to elude the officer, the court held the obstruction offense should have been charged as a misdemeanor rather than a felony. 261 Kan. at 539. In this case, Officer Monroe was attempting to execute an arrest warrant based on Pacelli's failure to appear at a probation revocation hearing in a felony domestic battery case. Because Monroe was executing a felony arrest warrant, Pacelli was properly charged with, convicted of, and sentenced for felony obstruction. See K.S.A.2011 Supp. 21–5904(b)(2)(A) ; Hudson, 261 Kan. at 539.
Affirmed.