Opinion
No. 110,346.
2015-02-6
STATE of Kansas, Appellee, v. Tiofilo RODRIGUEZ, Appellant.
Appeal from Grant District Court; Clint B. Peterson, Judge.Jenni L. Howsman, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Jessica E. Akers, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Grant District Court; Clint B. Peterson, Judge.
Jenni L. Howsman, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Jessica E. Akers, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., Arnold–Burger, J., and Larson, S.J.
MEMORANDUM OPINION
ARNOLD–BURGER, J.
This is Tiofilo (Tio) Rodriguez' direct appeal from convictions of one count of aggravated kidnapping, two counts of kidnapping, one count of aggravated battery, two counts of battery, three counts of criminal threat, and the sentences resulting from such convictions.
Tio contends on appeal (1) the State failed to charge him with aggravated kidnapping, (2) there was insufficient evidence to support the two kidnapping convictions, (3) it was reversible error to fail to instruct on the lesser included offenses of criminal restraint, (4) the aggravated battery statute, K.S.A.2011 Supp. 21–5413(b)(1)(C), is unconstitutionally vague, and (5) Colorado misdemeanor convictions for third-degree assault were improperly utilized to count as a person felony in determining his criminal history.
We will consider each contention in order after setting forth the evidence presented at trial and the proceedings giving rise to this appeal. However, finding no error, we ultimately affirm the decision of the district court.
Factual and Procedural Background
On December 29, 2011, Alicia Apodaca was at her home with her two sons, S.R. and J.R., and her live-in boyfriend, Tio. At trial, she testified that Tio had come home that night around 11:30 p.m. smelling of liquor, which made Apodaca uneasy. Because of this unease, Apodaca took her pillow to the living room intending to sleep there but changed her mind and went to the room shared by J.R. and S.R. to stay the night there. A short time later, Tio also came into the room and began watching television with Apodaca and her sons. Suddenly, Tio shut the door of the bedroom and told them they were never getting out of the room again.
Tio began accusing Apodaca of infidelity and then grabbed her hair and started punching her, beating her entire body which he did over the next 2 hours. At some point during this beating, Tio showed her an RCA cord, stating he was going to strangle her to death with it, which Apodaca believed to be a credible threat, feeling he was capable and willing to kill her.
Sometime during this event, Tio bound the boys to prevent them from interfering with his actions. He used the RCA cord to tie J.R.'s legs together, telling him if he sat on the bed and did not interfere with the beating of his mother, Tio would allow him to live, but if he interfered, he would join his mother and be killed as well. Both boys tried to stop Tio while he was beating their mother, prompting Tio to punch both of them. During these incidents, J.R. had complained that the RCA cord was too tight around his legs. Tio then untied J.R., and retied him using shoe laces. He also attempted to tie S.R. with shoe laces as well but was only able to get one leg tied as Apodaca attempted to escape, but Tio intercepted her, throwing her into the wall, and resumed beating her.
During the beating, all three victims vomited into a trash can that was in the room. After vomiting, they asked for water and Tio assented but allowed them to get water only from the bathroom. The way the house is positioned, the two bedrooms and bathroom were located off the same hallway which was very small and positioned in such a way that when Tio stood in the hallway to watch them in the bathroom, escape would have been impossible from either room, as one would have to run through Tio to escape. Apodaca testified that even though J.R. was able to get a drink of water, she did not believe that escape was possible. Further, Tio told her if she tried to escape, he would strangle all three, making the boys watch him kill her first.
Apodaca made multiple attempts at calling 911. While J.R. was allowed to get a drink of water, Apodaca retrieved a cell phone from under one of the beds in the room. The phone was not in service but was able to make emergency calls. While Tio was in the hallway, she dialed 911 and whispered that she needed help into the phone but then, fearing Tio had heard her, threw the phone between the wall and bed where it remained on. The police eventually responded.
Apodaca testified that at some point she noticed lights outside the home through a window and knew the police had arrived, and she also heard the police knock on the front door and identify themselves. When this occurred, Tio turned off the light and ordered the victims to stay silent. Apodaca testified she was attempting to talk to Tio, allowing the police time to enter the residence. She said, as she was doing this, S.R. had seen the light as well and ran to the window breaking it with his hand and yelling for help out of the broken window. Eventually, the police were able to enter the home and restrain Tio. After he had been handcuffed and as he was being taken from the home, he looked at all three victims and told them if he ever got out, he was going to come back and kill all three of them. They were frightened and believed he would carry out his threat if released.
The jury was shown a number of photographs showing Apodaca's injuries. She also testified that her vision was blurry for 2 weeks after the incident as a result of her beating.
Apodaca's two sons both testified. J.R. stated he was in his room with his mother and sleeping brother when Tio came into the room. After a time, Tio shut the door and told them they were not allowed to leave. Tio then began accusing Apodaca of infidelity, began to beat her up, and threatened to kill her. S.R. woke up when the beating began. J.R. testified Tio told him he would be killed if he tried to help Apodaca, but J.R. at one point did try to help his mother and Tio hit him.
J.R. also testified that sometime after Tio had threatened Apodaca with the RCA cord, he tied J.R.'s legs together with the cord. J.R. began to complain that the RCA cord was hurting his legs and after, some time, Tio untied him, instructing him to find something else that Tio could use to tie him back up. J.R. began to look in his closet for something, but Tio found some shoe laces and tied him back up. However, as J.R. was looking in his closet for something to be tied with, he remembered that his mother's phone was in her purse and also in the room, got the phone, and was able to call the police at a time when Apodaca was allowed to use the restroom. J.R. stated he was unable to try to escape due to the bedroom and bathroom being close together and he felt that if he tried to escape, he would be killed.
J.R. testified that when the police arrived, they cut the laces from his ankle. The jury was shown pictures documenting his injuries. He stated he was 14 years old at the time of the incident.
There was some discrepancy between J.R.'s trial testimony and his testimony at the preliminary hearing. At the preliminary hearing, J .R. testified that Tio did not hit him as J.R. did not try to help Apodaca but sat down after Tio looked at him when he got up to help. J.R. also testified at the preliminary hearing that Tio did not threaten him.
S.R. also testified. He stated he was 13 years old at the time of the incident and was asleep but woke up when he heard Tio beating his mother. After he woke up, Tio told him he was going to make S.R. watch as he killed Apodaca, and watched as Tio beat her. Tio told him if he tried to help Apodaca, Tio would strangle him with the RCA cord and showed it to him.
S.R. further testified he was punched in the face when he attempted to help Apodaca at one point. He also said Tio attempted to tie his legs together with a shoe lace but only got one leg tied because the police were knocking at the door and Apodaca attempted to escape. When Apodaca attempted flight, Tio caught her and threw her into the wall, putting a hole in the wall. S.R. testified when he heard the police, he punched out the window and tried to rip through the screen, screaming for help. S.R. also stated that at some point in the night he attempted to call the police but Tio discovered him, took his cell phone, removed the battery, and broke the phone. S.R. further stated as the police apprehended Tio, he threatened to kill them when he got out.
As with J.R., there was also discrepancy between S.R.'s trial testimony and his preliminary hearing testimony. At the preliminary, S.R. denied being threatened with the RCA cord. He also testified at trial that the only reason he did not leave the room was he did not want to leave his brother and mother alone.
The State presented testimony from Rhiannon Keen who was the 911 dispatcher the night in issue. She testified to receiving five calls from the Apodaca residence. A recording of the calls was played for the jury.
Officer Julie Hart also testified on behalf of the State. She was an officer who responded to the 911 calls. When she arrived at the house and unsuccessfully tried to make entry, she testified she heard a loud bang and a female scream and then saw S.R. trying to climb out of a window, stating that someone inside was going to kill them. When she asked S.R. if he was able to get to the door to allow her in, he stated he could not because someone was keeping them in the room.
Hart stated she was able to enter the house after Tio opened the back door for them, ordering him multiple times to get on the ground before he would comply. Tio denied there was anyone else in the house. Officer Hart then went through the home and found the victims in the bedroom. After she located them, she stated that Apodaca told her they had been in the room for about 2 hours as she was beaten by Tio. She also stated she found S.R. with a ligature around his ankle pulling at it and crying. She further testified she spoke to Apodaca further, and she showed her the RCA cord and told her Tio had threatened to kill her with it. A hole in the wall corresponded with an abrasion on Apodaca's back was also noted. She also recounted Apodaca's version of the events. She observed ligature marks on J.R. which she felt were consistent with being bound with the RCA cord.
The State presented the testimony of Deputy Johnathon Smith who also responded to the incident. He testified when he arrived at the residence, the front door was chained shut; shortly afterwards, he heard a thud and a scream from inside the house. He then went around the house and saw a child break a window shouting for help because there was a person wielding a knife inside. No knife was found. After seeing this, Deputy Smith attempted to kick in the back door and made some progress before Tio opened the door. Deputy Smith further testified that after Tio had been apprehended and handcuffed, while Apodaca and the boys were in the living room, Tio stated that if he ever got out, he would come back and finish what he started and he could slip out of the handcuffs at any time he wanted, which scared the victims.
Tio called three witnesses at trial before testifying. He first called Herminia Parada, his cousin, who testified that Tio was at her home on the day of the incident from 2:30 p.m. to 5:30 p.m. doing work and drank no alcohol while there, and testified he told her that he was going to Parada's sister's home after that. The next witness, Parada's sister, Nancy Guerrero, testified Tio arrived at her house between 5:15 and 5:30 p.m. and left around 7:30 p.m. for her brother's house, drinking no alcohol while he was there. Sisto Rodriguez, brother of Parada and Guerrero, testified Tio had come over to his home around 7:30 p.m. and left at 11:30 p.m. after they had shared a 12–pack of beer. Sisto testified that when Tio left his home he was not drunk.
Tio also testified. According to Tio, he and Apodaca had argued for 30 to 45 minutes that night after he returned home because he had information she was texting and calling another man. He testified he hit her, but only three times, once on the left side of her head and twice on her arm, and did no other violent act, did not tie up the boys, did not hit the boys, did not threaten anyone or confine them to a room. He did testify that Apodaca had asked him to move out of the home, first giving him 2 weeks to move out and then changed her mind and told him to move out in 6 days, but at no point did Apodaca ask him to leave the home on the night of the incident.
On cross-examination, Tio reiterated that he had only hit Apodaca on her arm and had no idea how her other injuries occurred. He further testified Apodaca had suffered from blurry vision before the night in question and denied binding the boys. He also stated that S.R. had broken windows in the home previously when no one was home, he had no idea why S.R. would have broken a window on the night of his arrest, and had no knowledge on how the hole in the wall got there, denying that he shoved Apodaca into the wall. He specifically denied making threats when arrested.
As the result of the events which have been set forth above, Tio was initially charged with three counts of aggravated kidnapping, one count of aggravated battery, three counts of aggravated assault, three counts of criminal threat, two counts of aggravated endangerment of a child, three counts of criminal restraint, two counts of battery, and one count of criminal damage to property. After the preliminary hearing, two of the aggravated kidnapping charges were amended to kidnapping. Prior to trial, the criminal restraint charges were also dismissed without objection. At trial, the district court dismissed the aggravated assaults against S.R. and J.R. and the aggravated endangerment of a child charges, reasoning they were the same acts charged as criminal threat and criminal threat was the appropriate charge and the aggravated child endangerment was multiplicitous to the other charges.
The jury found Tio guilty of the aggravated kidnapping of Apodaca, the two kidnappings of J.R. and S.R., aggravated battery of Apodaca, the three criminal threat charges, and the two batteries of S.R. and J.R., but acquitted him of aggravated assault of Apodaca and criminal damage to property.
Tio's motions for a new trial and a departure sentence were both denied. The presentence report showed a criminal history of B for the primary conviction of aggravated kidnapping. The parties agree that the report showed three adult person misdemeanors had been aggregated into an additional person felony. His prior conviction worksheet showed three person misdemeanors: two Colorado convictions for assault in the third degree in violation of Colo.Rev.Stat. § 18–3–204 and one municipal battery conviction from Ulysses, Kansas.
During his allocution at his sentencing hearing, Rodriguez stated:
“I got my presentence report. Yeah, you know, she wants to use my record against me, and that's the law. That's the law, Judge, you know that. That is the law. I'm not—I'm not fighting that. If you're going to use that against me, use what I've done good. I've done a lot more good than I've done bad, I have.”
When announcing the sentence, the district court stated: “And the [d]efendant has testified regarding his criminal history—or he made statements regarding his criminal history, that it—that criminal history B is correct and that the criminal history contained in the PSI is correct.”
With the criminal history score of B, the sentencing guidelines range was 554 months, 586 months, and 618 months. The district court sentenced Tio to the aggravated range within the guidelines for 618 months on the aggravated kidnapping charges. The district court also sentenced Tio to the aggravated amount of all the convicted felonies and ran all of the sentences consecutively, resulting in a 774–month (64 1/2 years) controlling sentence. Tio timely filed this direct appeal.
ANALYSIS
The criminal information filed against Tio was not so defective as to the charge of aggravated kidnapping as to require reversal of his conviction.
Tio first claims that the information filed against him was defective because it lacked an essential element of the crime in that it did not allege specific intent.
Both the initial and amended information filed against Tio charged him with aggravated kidnapping of Apodaca, alleging that he did “take or confine any person, to wit, Alicia Apodaca, accomplished by force, threat, or deception, and bodily harm is inflicted upon the person kidnapped.”
K.S.A.2011 Supp. 21–5408(b) defines aggravated kidnapping as “kidnapping, as defined in subsection (a), when bodily harm is inflicted upon the person kidnapped.” K.S.A.2011 Supp. 21–5408(a) defines kidnapping as
“the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
(1) For ransom, or as a shield or hostage;
(2) to facilitate flight or the commission of any crime;
(3) to inflict bodily injury or to terrorize the victim or another; or
(4) to interfere with the performance of any governmental or political function.”
Tio claims that since the element of specific intent was never present in the information, the crime he was actually charged with was criminal restraint. See State v. Timms, 29 Kan.App.2d 770, 774, 31 P.3d 323 (2001) (“The key difference between kidnapping and criminal restraint is that kidnapping requires specific intent and criminal restraint does not.”). Therefore, Tio claims the information filed against him was so defective requiring our court to vacate his conviction of aggravated kidnapping.
Whether a criminal complaint or information confers subject matter jurisdiction is a question of law over which this court has unlimited review. State v. Gonzales, 289 Kan. 351, 366, 212 P.3d 215 (2009). However, our test for determining the sufficiency of the information is dependent on when the issue is first raised. 289 Kan. at 368, 212 P.3d 215. The rule to be used when the sufficiency of a charging document is raised for the first time on appeal was first laid out in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). As set out in Hall, an information that is challenged for the first time on appeal will be “faced with a liberal construction in favor of validity” and the information itself will be reviewed as whole, including facts necessarily implied, and interpreted using a common-sense approach. Hall, 246 Kan. at 764, 793 P.2d 737. To succeed on an attack of the information the first time on appeal, the defendant must show that the alleged defect either (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial. State v. Tapia, 295 Kan. 978, 984–85, 287 P.3d 879 (2012).
Before confronting the difficulty to satisfy Hall prerequisites on appeal, Tio asks us to depart from our duty to follow Hall (see State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 [2011], rev. denied 294 Kan. 946 [2012] ), because State v. Portillo, 294 Kan. 242, 255, 274 P.3d 640 (2012), opined:
“It gives one pause to look closely at how the Hall rule works. During the jury trial, the charging document would be jurisdictionally and fatally defective if it omitted an essential element and the trial court would not have jurisdiction to enter any resulting conviction. However, if the defendant later failed to file a motion for arrest of judgment, the charging document and resulting conviction would somehow acquire retroactive validity. That notion appears to run counter to the rule that subject matter jurisdiction cannot be created by waiver, estoppel, or consent. [Citation omitted.] Likewise, the constraint on raising the jurisdictional issue for the first time on appeal is inconsistent with our holdings that allow a challenge to the district court's subject matter jurisdiction to be raised at any time. [Citation omitted.] Moreover, we recently declared that appellate courts have ‘no authority to create equitable exceptions to jurisdictional requirements.’ [Citation omitted.]”
However, while this disapproval is noted, the portion of the opinion relied on by Tio is clearly dicta as immediately after the quoted language the Portillo court noted: “However, we have not been asked to revisit Hall and our ultimate resolution will not require the application of that case's restive rule.” Portillo, 294 Kan. at 255, 274 P.3d 640. Further, despite the doubt cast onto Hall by Portillo, our Supreme Court has continued to apply this rule and, just months after Portillo, discussed Hall and reiterated that it was the correct analysis in determining issues of missing elements in a charging document instead of an insufficient evidence analysis. See Tapia, 295 Kan. at 993, 287 P.3d 879 (“The State's failure to allege an overt act in furtherance of a conspiracy as required by K.S.A. 21–3302[a] does not mean that the evidence against a defendant is insufficient. Rather, the complaint is defective and subject to an analysis under Hall, 246 Kan. 728 at 764, 793 P.2d 737.”).
Our obligation remains to continue to apply the rules and reasoning of Hall to this appeal.
As to Hall, Tio argues “[t]he defect in this case affects [Rodriguez'] substantial rights to a fair trial because it makes impossible appellate review of the sufficiency of the evidence supporting the conviction.” Tio correctly notes that the test for determining whether sufficient evidence exists for a kidnapping done with the intent to facilitate flight or commission of another crime under K.S.A.2011 Supp. 21–5408(a)(2) is different from that under subsection (a)(3) pertaining to the intent to inflict bodily injury or terrorize the victim or another. See State v. Burden, 275 Kan. 934, 69 P.3d 1120 (2003) (holding that three-prong sufficiency analysis of State v. Buggs, 219 Kan. 203, 547 P.2d 720 [1976], only applicable to kidnappings done pursuant to subsection requiring intent of flight or commission of other crime and not for intent to inflict bodily injury). This argument is not persuasive.
Here, as to the aggravated kidnapping charge, the jury was instructed:
“To establish this charge, each of the following claims must be proved:
1. That the defendant confined Alicia Apodaca by force or threat;
2. That it was done with the intent to hold such person to inflict bodily injury or to terrorize the victim, or another;
3. That bodily harm was inflicted upon Alicia Apodaca; and
4. That this act occurred on or about the 29th day of December, 2011, in Grant County, Kansas.”
Clearly, in reviewing the sufficiency of the evidence we have the opportunity to determine the elements required to be proved and there was ample evidence of each of the required elements of aggravated kidnapping.
Similarly to this case, the defendant in Tapia tried to claim that a missing element in the charging document be reviewed under a sufficiency of the evidence theory, but this argument failed as the elements of the crime charged had been proved by sufficient evidence but “[t]he jury was not—and need not have been—required to find that the State had alleged this overt act in order to convict [defendant].” 295 Kan. at 990–91, 287 P.3d 879.
We have undertaken a sufficiency of the evidence analysis based on the conviction and the jury instructions and found the evidence presented to the jury fit the crime charged and defended and the resulting conviction. Since the only claim that Tio makes to defeat the defective charge under Hall fails, his claim of defective information cannot succeed.
Although not argued by Tio, our examination of the record and the evidence fails to show that the alleged defect prejudiced his preparation of a defense, impaired his ability to plead the conviction in any subsequent prosecution, or limited Tio's substantial rights to a fair trial. Tapia, 295 Kan. at 984–85, 287 P.3d 879.
There was sufficient evidence to convict Tio of the kidnappings of S.R. and J.R.
As his second claim of error, Tio claims there was insufficient evidence supporting the convictions for kidnapping S.R. and J.R., specifically alleging that “[t]he [S]tate failed to present evidence sufficient to establish that Tio had specific intent to hold J.R. or S.R. ‘to inflict bodily injury or to terrorize the victim or another.’ “ Tio argues instead that “the record does not contain any evidence ... that their alleged confinement was for any purpose other than to facilitate domestic violence against [Apodaca].” Instead, Tio claims that the evidence presented may be sufficient to prove that he confined S.R. and J.R. for the purpose of committing another crime, domestic violence, which would satisfy K.S.A.2011 Supp. 21–5408(a)(2), but not K.S.A.2011 Supp. 21–5408(a)(3) as charged.
When we are asked to review the sufficiency of the evidence supporting a conviction, we review such claims by looking at all the evidence in a light most favorable to the prosecution and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). Here, there is clearly sufficient evidence to support the conviction for kidnapping with the intent to cause bodily injury or to terrorize S.R. and J.R. or another.
Apodaca testified that Tio told J.R. “[t]hat he would tie him up, and if he would sit down on the bed and not interfere with him hitting me and wanting to take my life away, that he would let him live, but if not, he would get them to join them—join me.” Apodaca also testified that Tio stated he wanted J.R. and S.R. to witness her being strangled to death by him. J.R. testified that Tio told him that he would kill him if he tried to help Apodaca and that he tied his legs together. S.R. testified that Tio stated he was going to make S.R. and J.R. watch as he killed Apodaca and that Tio also attempted to tie him up.
There is easily sufficient evidence to show that Tio possessed the specific intent to confine S.R. and J.R. with the intent to inflict bodily injury or to terrorize the victim or another. “Intent, like any element of a crime, may be shown by circumstantial evidence.” State v. Calderon, 233 Kan. 87, 93, 661 P.2d 781 (1983). Viewed in a light most favorable to the prosecution, the testimony of Apodaca that Tio wished J.R. and S.R. to witness her death by strangulation is certainly sufficient to show that Tio intended to confine S.R. and J.R. with the specific intent of terrorizing Apodaca.
The evidence at trial showed that Tio's primary objective was to inflict bodily harm upon Apodaca and not J.R. or S.R., but the subsection under which Tio was charged makes it a crime to confine someone with the intent “to inflict bodily injury or to terrorize the victim or another.” (Emphasis added.) K.S.A.2011 Supp. 21–5408(a)(3). Clearly, the evidence showed the necessary elements of kidnapping as to J.R. and S.R. as Tio confined them with intent to inflict bodily harm on Apodaca. Tio's second claim of error fails.
The court did not commit reversible error in failing to instruct the jury on the lesser included offenses of criminal restraint.
Tio's third point of error claims the district court erred when it did not instruct the jury on the crime of criminal restraint as a lesser included offense to the crimes of kidnapping and aggravated kidnapping. Whether a crime is a lesser included offense of another is a question of law reviewed de novo. State v. Parks, 294 Kan. 785, 802, 280 P.3d 766 (2012). Our Supreme Court has recently reviewed criminal restraint in the context as a lesser included crime of kidnapping, coming to the conclusion that criminal restraint is indeed a lesser included crime of kidnapping and, therefore, aggravated kidnapping by extension. See State v. Ramirez, 299 Kan. 224, 233, 328 P.3d 1075 (2014) ( “[W]e hold that criminal restraint constitutes a lesser degree of the crime of kidnapping.”).
Since criminal restraint is indeed a lesser included crime subsumed in kidnapping and aggravated kidnapping, we review if there was error in not providing the instruction for criminal restraint. The duty to provide instruction on lesser included offenses is found in K.S.A.2011 Supp. 22–3414(3) which states in relevant part: “In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (b) of K.S.A.2011 Supp. 21–5109, and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.” Generally, instructions on lesser included offenses are necessary when there is some evidence from any source and proffered by either party, that would reasonably justify a conviction of some lesser included crime. State v. Rodriguez, 295 Kan. 1146, 1152, 289 P.3d 85 (2012). When determining whether a lesser included offense instruction was necessary, we view the evidence in the light most favorable to the defendant. 295 Kan. at 1152, 289 P.3d 85.
Tio did not request the instructions at trial, and K.S.A.2011 Supp. 22–3414(3) states:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.”
This involves a two-step process:
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.”
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” State v. Williams, 295 Kan. 506, Syl. ¶¶ 4–5, 286 P.3d 195 (2012).
We first consider whether the instruction would have been legally and factually appropriate. As we noted earlier, criminal restraint is a lesser included offense of kidnapping and as such, the instruction would have been legally appropriate under K.S.A.2011 Supp. 22–3414(3).
As to factual appropriateness, the key difference between criminal restraint and kidnapping is that specific intent is required for kidnapping and not for criminal restraint. Timms, 29 Kan.App.2d at 774, 31 P.3d 323. We have clearly shown that Tio exhibited the specific intent to satisfy the required elements of both kidnapping and aggravated kidnapping in our discussions of issues one and two previously in this opinion. But, the facts would also support a claim of criminal restraint so with an instruction both legally and factually appropriate, there was error in not providing the instruction.
The above finding requires us to move to the reversibility analysis and determine whether this failure to give the lesser included instruction was clearly erroneous.
Tio has claimed the failure to give the instruction on criminal restraint violated his constitutional right of due process, both under federal and our Kansas Constitutions. However, our Supreme Court held that constitutional grounds for reversal may not be properly raised for the first time on appeal. Williams, 295 Kan. at 517, 286 P.3d 195. There are three exceptions to this rule—the claim is determinate of the case and involves only a question of law arising on proved or admitted facts, consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights, and the district court is right for the wrong reason. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). We will consider Tio's arguments that his due process constitutional rights have been violated.
Tio relies on State v. Wells, 297 Kan. 741, 305 P.3d 568 (2013), for his argument that failure to instruct on lesser included offenses is a due process violation under the United States Constitution. In Wells, our Supreme Court considered whether a recent statutory amendment of the felony murder statute stating there are no lesser included offenses for felony murder operated prospectively. In that case, it was stated: “The statutory extinguishment of these lesser included offenses is a substantive change, indeed, one that may have constitutional ramifications.” 297 Kan. at 761, 305 P.3d 568. However, the Wells decision did not announce any rule that the failure to give a lesser included instruction actually did implicate due process.
The cases cited in Wells regarding the failure to give a required lesser included or element instruction all related to capital cases and offending capital murder statutes. See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Boltz v. Mullin, 415 F.3d 1215 (10th Cir.2005). There were no Kansas decisions presented to us supporting Tio's argument that due process is offended by the failure to give a lesser included instruction in a noncapital case.
Tio's argument that it is a due process violation of the Kansas Constitution to fail to give a lesser included instruction relies on Harrell v. State, 134 So.3d 266 (Miss.2014), Harrell again, is a capital murder appeal. But, the issue there was not the absence of a lesser included instruction but rather the conviction of capital murder with the underlying felony of robbery and the error recognized was the failure to instruct the jury on the elements of the underlying robbery.
The Mississippi Supreme Court held that Harrell's due process rights were violated. 134 So.3d at 275. Tio points out the language of the Mississippi and Kansas Constitutions have similar language that “the right of trial by jury shall be violate.” This decision does not convince us that a due process violation exists in our case which differs in not being a capital murder and involves different claimed instructional deficiencies.
With no merit being found in Tio's contentions that his federal and Kansas due process rights have been violated, we turn to the clearly erroneous standard. As stated earlier, the decision is clearly erroneous only if we are firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. Tio bears the burden to demonstrate this. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195.
It is highly unlikely that the jury would have reached a different verdict had the instruction been given. We need not again repeat all the evidence which has previously been set forth to show that sufficient competent evidence supported the aggravated kidnapping of Apodaca and the kidnapping of S.R. and J.R. They were confined for an extended period of time, over 2 hours, bodily harm was clearly inflicted, she was terrorized, death was threatened, the boys were struck and tied up, and all feared for their lives.
It is not enough for Tio to suggest that had the instruction been given, the jury could have found there was no specific intent to inflict bodily damage or terrorize the victims. Tio must convince us that the jury would have reached a different verdict, and he has failed in his obligation to do so. We are not persuaded that the jury would have reached a different verdict, much less being firmly convinced that such would have been the case. For all the reasons stated, this contention fails.
The aggravated battery statute, K.S.A.2011 Supp. 21–5413(b)(1)(C), is not unconstitutionally vague.
Tio asserts for the first time on appeal that K.S.A.2011 Supp. 21–5413(b)(1)(C) which defines aggravated battery as “knowingly causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted,” is unconstitutionally vague. Specifically, he asserts that the terms “disfigurement” and “can be inflicted” are both unconstitutionally vague.
As a general rule, constitutional issues not raised before the district courts are not available for appellate review when asserted for the first time on appeal. State v. Reed, 40 Kan.App.2d 269, 278, 191 P.3d 341 (2008), rev. denied 290 Kan. 1102 (2010). However, there are exceptions to this general rule. These exceptions are: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice to prevent denial of fundamental rights; and (3) the district courts came to a correct conclusion but supported by the wrong reason. State v. Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011). Here, Tio argues the first two exceptions are applicable.
Due process demands that a criminal statute cannot be vague and indefinite. State v. Adams, 254 Kan. 436, 438, 866 P.2d 1017 (1994). As such, this claim meets the second exception above as a conviction based upon an unconstitutionally vague statute offends due process. State v. Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009). We will consider the question but point out a panel of this court was recently presented with the exact same arguments in State v. Landwehr, No. 107,273, 2013 WL 2917879 (Kan.App.2013), rev. denied ––– Kan. –––– (November 22, 2013), and found the statute constitutional.
Determining a statute's constitutionality is a question of law and reviewed de novo. State v. McCaslin, 291 Kan. 697, 730, 245 P.3d 1030 (2011). However, statutes are presumed to be constitutional; all doubts must be resolved in favor of validity, and if there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and duty to do so. State v. Seward, 296 Kan. 979, 981, 297 P.3d 272 (2013).
“At its heart the test for vagueness is a commonsense determination of fundamental fairness.” State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977). The test to determine whether a criminal statute is so vague as to be unconstitutional concerns two inquiries: (1) Whether the statute gives fair warning to those potentially subject to it, and (2) whether it adequately guards against arbitrary and unreasonable enforcement. City of Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270 (1990).
Our Supreme Court has previously weighed in on the definition of “disfigurement,” finding that it has no single technical meaning or definition, but is rather a question of fact to be considered by the jury in the ordinary sense in State v. Chandler, 252 Kan. 797, 804–05, 850 P.2d 803 (1993). This is clearly a word that is commonly understood by the public and is a common term that is not unconstitutionally vague.
Tio makes an argument that the “can be inflicted” phrase requires too much speculation as whether disfigurement may, possibly, will, or is reasonably likely to occur. However, as was said in Landwehr, the terms were approved in State v. Kleber, 2 Kan.App.2d 115, 118–19, 575 P.2d 900, rev. denied 225 Kan. 846 (1978), where a similar objection to the one we face here was made and the Kleber court said:
“Defendant specifically objects to the phrase ‘can be inflicted’ because the word ‘can’ merely denotes a contingency that may or may not occur. Defendant contends the statute does not adequately apprise a person of common understanding as to the conduct proscribed and necessarily involves guesswork.
“K.S.A. 21–3414(c) meets the constitutional test. The statute contains the following elements: (1) unlawful touching or application of force; (2) to the person of another; (3) with the intent to injure; and (4) done with a deadly weapon or in any manner whereby great bodily harm or death can be inflicted. The elements are simple and certainly within common understanding and practice. The terms of the statute are not so vague that persons of common intelligence must necessarily guess at their meaning and differ as to their application. [Citation omitted.]” (Emphasis added.)
We agree with Kleber and Landwehr. Tio's constitutional argument is rejected.
The district court properly aggregated Tio's prior Colorado misdemeanor convictions into a person felony.
As Tio's final point of error, he contends that the district court erred in aggregating, without statutory language allowing such aggregation, his prior Colorado misdemeanor convictions into a person felony which had the effect of raising his criminal history score from D to B. This resulted in a disproportionally long sentence of 774 months for what his appellate counsel argues was simply a really bad domestic battery offense.
Before considering this sentencing argument, we must review the record and statements below to determine if this issue is properly before our court, or if it has been waived, or if there was invited error below.
During his allocation at the sentencing hearing, Tio stated:
“I got my presentence report. Yeah, you know, she wants to use my record against me, and that's the law. That's the law, Judge, you know that. That is the law. I'm—I'm not fighting that. If you're going to use that against me, use what I've done good. I've done a lot more good than I've done bad, I have.”
When announcing the sentence, the district judge stated: “And the [d]efendant has testified regarding his criminal history—or he made statements regarding his criminal history, that it—that criminal history B is correct and that the criminal history contained in the PSI is correct.”
It appears the district court viewed Tio's statement as a stipulation to his criminal history score, and Tio did not object to this characterization. If, in fact, Tio did stipulate to his criminal history score, it is questionable that we can review the sentences as when a party stipulates to the criminal history score they generally cannot obtain a correction of the sentence as they invited the error. See State v. Hankins, 49 Kan.App.2d 971, 975, 319 P.3d 571 (2014), petition for rev. filed March 19, 2014.
However, this appeal is not one where there was a stipulation below or the invited error rule applies. Tio is not disputing the existence of the prior convictions, but rather its classification and aggregation. These are questions of law and are not subject to the invited error rule as no party can stipulate to an incorrect application of the law. State v. Donaldson, 35 Kan.App.2d 540, 544, 133 P.3d 154 (2006).
Additionally, when properly read, Tio's statements were not close to being a stipulation of his criminal history score. All he said was that he knew they were going to use his history, not his specific score.
Now, as to the aggregation of Tio's prior convictions, he claims the district court erred in aggregating two of his Colorado convictions with his Ulysses municipal conviction into a felony. Determining a criminal history score requires interpretation of statutes and provisions of the Kansas Sentencing Guidelines, and as such, presents a question of law to be reviewed de novo. State v. Murdoch, 299 Kan. 312, 314, 323 P.3d 846 (2014).
When including out-of-state convictions as part of a criminal history score, K.S.A.2011 Supp. 21–6811(e) provides:
“Out-of-state convictions and juvenile adjudications shall be used in classifying the offender's criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.”
In addition, K.S.A.2011 Supp. 21–6811(a) deals with aggregation of prior misdemeanors into felonies and provides:
“Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender's criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes.”
It is undisputed that at the time Tio committed this offense, he had two convictions in Colorado, one under Colo.Rev.Stat. § 18–3–204 (2005) and one under Colo.Rev.Stat. § 18–3–204 (2001), assault in the third degree-both with a domestic violence designation. See Colo.Rev.Stat. § 18–6–801(1)(a) (domestic violence designations). In addition, Tio had a prior municipal battery conviction in Ulysses, Kansas, which is not at issue here. Because the Colorado convictions were for misdemeanors in Colorado, we must treat them as misdemeanors in Kansas. K.S.A.2011 Supp. 21–6811(e). Our court has already determined that a violation of Colo.Rev.Stat. § 18–3–204 is to be treated as a person misdemeanor in Kansas. State v. LaGrange, 21 Kan.App.2d 477, 481–82, 901 P.2d 44, rev. denied 258 Kan. 861 (1995). The statutes at issue here were the same substantively as the one interpreted in LaGrange, so there is no reason to conclude that the result should be different. Moreover, both aggravated battery under K.S.A. 21–3414—the Kansas crime most comparable to Colo.Rev.Stat. § 18–3–204 according to the LaGrange panel, 21 Kan.App.2d at 481–82, 901 P.2d 44—and simple battery under K.S.A. 21–3412, have always been classified as person crimes in Kansas. See State v. Piercy, No. 110,526, 2014 WL 7152316, at *10–13 (Kan.App.2014) (unpublished opinion).
As noted, under our sentencing scheme in Kansas, every three adult convictions of class A or B misdemeanors in an offender's criminal history are aggregated into one person felony for criminal history purposes. K.S.A.2011 Supp. 21–6811(a). The sole question then becomes whether Tio's two Colorado person misdemeanors were equivalent to at least class A or class B misdemeanors in Kansas. Tio argues that since the statute informs us how to compare offenses and determine whether an out-of-state offense is a person or nonperson offense, but does not inform us how to determine whether the out-of-state offense should be classified as a class A or class B misdemeanor, his out-of-state offenses cannot be designated class A or class B misdemeanors in Kansas and are therefore prohibited from being aggregated into a felony. We do not find his argument persuasive.
The designation of the level of the offense for sentencing purposes is inextricable from the offense itself. In most states, as in Kansas, the designation is set out within the substantive criminal offense statute. We see nothing in the current Kansas sentence scheme that would require us to overlook the comparability of the sentence provided in Colorado to the sentencing scheme in Kansas. Just as the offenses in different states may not have the same titles, the sentencing schemes may not use the same titles either, but we should look to what is comparable. See State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010) (comparable offense to be determined as of the date the prior crime was committed). So we will examine each.
In Kansas, an offense is defined as a class A or class B misdemeanor based upon the maximum sentence which could be imposed. Imprisonment for a class A misdemeanor shall not exceed 1 year, and imprisonment for a class B misdemeanor shall not exceed 6 months of imprisonment. K.S.A.2011 Supp. 21–6602(a)(1), (2). This scheme was the same at the time of Tio's Colorado convictions. See K.S.A. 21–4502(1)(a), (b). Misdemeanor battery is a class B person misdemeanor in Kansas, and domestic battery is a class A or class B person misdemeanor depending on prior offenses.
K.S.A. 21–3412(b); K.S.A. 21–3412a(b). Moreover, the LaGrange panel found that Colo.Rev.Stat. § 18–3–204, assault in the third degree, is actually most comparable to aggravated battery in Kansas, a crime which at its lowest severity level was a severity level 8, person felony. See K.S.A. 21–3414(b); 21 Kan.App.2d at 481, 901 P.2d 44. A severity level 8, person felony in Kansas carries a minimum sentence of 7 months in prison with a maximum of 23 months, depending on the offender's criminal history. K.S.A. 21–4704b.
Likewise, in Colorado class 1 and class 2 misdemeanors are based upon the minimum and maximum sentences. A class 1 misdemeanor is 6 to 18 months imprisonment, and a class 2 misdemeanor is 3 to 12 months' imprisonment. These classifications have not changed over the years. Colo.Rev.Stat. § 18–1.3–501 (2013); see Colo.Rev.Stat. § 18–1.3–501 (2005); Colo.Rev.Stat. § 18–1–106 (2001). Tio's crime of conviction, assault in the third degree, was defined as a class 1 misdemeanor in 2001 and a class 1 misdemeanor-extraordinary risk crime in 2005. The extraordinary risk designation allowed the maximum sentence of 18 months to be increased to 24 months. Colo.Rev.Stat. § 18–1.3–501(3)(a) (2005). Although these potential sentences exceed the maximum class A misdemeanor sentence in Kansas, they are more similar to class A sentences than any other misdemeanor sentencing designation in Kansas. Accordingly, we conclude that the class 1 misdemeanor designation in Colorado is most comparable to the class A misdemeanor designation in Kansas and the convictions should be aggregated as provided in K.S.A.2011 Supp. 21–6811(a).
The dissent concludes that although we
“have Kansas decisions as to how to classify out-of-state decisions as felonies or misdemeanors or person or nonperson[, we] have not been pointed to any previous Kansas case or statute which instructs a sentencing court on precisely how to convert an out-of-state misdemeanor determined to be comparable to a Kansas felony into the proper category of a Kansas misdemeanor.”
Accordingly, the dissent concludes that we are prohibited from making such a conversion.
But this ignores the fact, as previously noted, that in this case and in most, the penalties for the crime are contained in the substantive criminal statute itself. Comparing both is necessary to properly classify the out-of-state crime in Kansas. We find no language in the statute that would prevent such a comparison. In fact, the statute requires that “[o]ut-of-state convictions ... shall be used in classifying the offender's criminal history.” K.S .A.2011 Supp. 21–6811(e). In determining the level of misdemeanor that is comparable, a court is doing nothing more than comparing the statutory language from each state to use for classification in the offender's criminal history. The dissent prevents such a complete comparison and fails to properly consider Tio's prior Colorado offenses—which it does not dispute are comparable to Kansas offenses.
The decision of the district court is affirmed. LARSON, J., concurring in part and dissenting in part:
I concur with the majority decision to affirm all of Tio's convictions although it is recognized that at least a minority of our present Kansas Supreme Court justices may be prepared to revisit the teachings of State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990). See State v. Portello, 294 Kan. 242, 255, 274 P.3d 640 (2012). Our obligation remains to continue to apply the rule of Hall as we have done here in affirming Tio's aggravated kidnapping conviction.
I differ with the majority in its approval of a judicially constructed method resulting in the aggregating for criminal history purposes of two out-of-state convictions along with a Kansas municipal court battery conviction, into a Kansas person felony which, absent specific statutory direction, moved Tio's criminal history score from D to B.
The devastating effect that a criminal history category score of B, rather than D, had on Tio's imposed total sentence of 774 months (effectively a life sentence) is shown by examining K.S.A.2011 Supp. 21–6804. Under criminal history category score D, the maximum presumptive sentence for aggravated kidnapping would have been 267 months rather than the 618–month sentence which was consecutively employed. This reduction of 351 months in Tio's sentence would have been similarly proportionally reduced on all of the lesser sentences for the remaining convictions, all of which were ordered to run consecutively. The sentences imposed with a criminal history category score of D would still have been extensive but not to the extent of the ones imposed.
The Colorado crimes that Tio was convicted under were at the time of his conviction, and still are, misdemeanors. Colo.Rev.Stat. § 18–3–204 (2005) and Colo.Rev.Stat. § 18–3–204 (2001). However, Colorado does not classify their misdemeanors as A, B, or C, as Kansas does, but rather classifies misdemeanors as falling into one of three classifications labeled 1, 2, or 3, with 1 misdemeanors garnering the most severe punishment and 3 the least. Colo.Rev.Stat. § 18–1.3–501 (2001) (1)(a). Kansas, while similar, is somewhat different as our state classifies misdemeanors into four classifications-A, B, C, and unclassified misdemeanors. K.S.A.2011 Supp. 21–6602(a), (1), (2), (3), and (4), which reads as follows:
“(1) Class A, the sentence for which shall be a definite term of confinement in the county jail which shall be fixed by the court and shall not exceed one year;
(2) class B, the sentence for which shall be a definite term of confinement in the county jail which shall be fixed by the court and shall not exceed six months;
(3) class C, the sentence for which shall be a definite term of confinement in the county jail which shall be fixed by the court and shall not exceed one month; and
(4) unclassified misdemeanors, which shall include all crimes declared to be misdemeanors without specification as to class, the sentence for which shall be in accordance with the sentence specified in the statute that defines the crime; if no penalty is provided in such law, the sentence shall be the same penalty as provided herein for a class C misdemeanor.”
K.S.A.2011 Supp. 21–6811(a) provides that every three prior person A or B misdemeanors shall be aggregated into one felony. K.S .A.2011 Supp. 21–6811(e) instructs on how to determine if an out-of-state conviction is a person or nonperson crime. But, there is nothing within these statutes to direct the sentencing court on how to determine conversion of an out-of-state misdemeanor into the A, B, C, or unclassified category Kansas uses to classify misdemeanors. Therefore, Tio argues that since there is no statutory direction as how to aggregate these misdemeanors into either an A or B, they were improperly aggregated.
The Colorado crimes Tio had previously been convicted of have been determined to be comparable to the Kansas crime of aggravated battery, a felony in Kansas. State v. LaGrange, 21 Kan.App.2d 477, 481–82, 901 P.2d 44, rev. denied 258 Kan. 861 (1995). LaGrange's specific holding was “[a] court may consider a Kansas felony to be a comparable offense when determining whether an out-of-state misdemeanor conviction is a person or nonperson crime for criminal history purposes.” 21 Kan.App.2d 477, Syl. ¶ 3, 901 P.2d 44. However, this ruling was made only to determine if the crime was a person or a nonperson misdemeanor and not to decide the degree of misdemeanor.
We have Kansas decisions as to how to classify out-of-state decisions as felonies or misdemeanors or person or nonperson. We have not been pointed to any previous Kansas case or statute which instructs a sentencing court on precisely how to convert an out-of-state misdemeanor determined to be comparable to a Kansas felony into the proper category of a Kansas misdemeanor.
K.S.A.2011 Supp. 21–6811(a) is clear that only class A or B misdemeanors may be aggregated. The State argues to us that LaGrange disposes of Tio's argument because “Person misdemeanors are classified as either class A or class B misdemeanors” and since LaGrange held that Colo.Rev.Stat. § 18–3–204 is a person misdemeanor, it must of necessity be a class A or a class B Kansas misdemeanor eligible for aggregation.
It would seem that a logical course of action would be to find that a Colorado class 1 misdemeanor is most analogous to a Kansas class A misdemeanor. However, the sentencing statutes simply do not provide any language, direction, or mechanism for such a ruling. And, without repeating all the instructive language and analysis of another sentencing issue (upward durational departure sentences), we point to our Supreme Court's conclusion in State v. Kessler, 276 Kan. 202, 217, 73 P.3d 761 (2003): “[W]e deny the State's invitation to work around a flawed sentencing scheme. A district court's authority to impose sentence is controlled by statute.” See State v. Horn, 291 Kan. 1, 11–12, 238 P.3d 238 (2010).
The State argues that State v. Vega–Fuentes, 264 Kan. 10, 955 P.2d 1235 (1998), is controlling and has disposed of the question which Tio raises. In Vega–Fuentes, our Supreme Court held that municipal convictions may be used for aggregation as misdemeanors. 264 Kan. at 14–15, 955 P.2d 1235. There, the defendant argued that aggregating municipal violations were impermissible because they were not listed in K.S.A.1994 Supp. 21–4711(a) (same as K.S.A.2011 Supp. 21–6811[a] ). However, our Supreme Court ruled that when K.S.A.1994 Supp. 21–4711(a) was read in conjunction with K.S.A.1994 Supp. 21–4710(d) (now K.S.A.2011 Supp. 21–6810), municipal ordinance violations, which are comparable to misdemeanors are to be treated as those misdemeanors for purposes of classification and aggregation. 264 Kan. at 15, 955 P.2d 1235. But, this does not solve the problem as stated above. K.S.A.2011 Supp. 21–6811(a) only allows for aggregation of class A or B misdemeanors, or three separate convictions of K.S.A. 21–5412.
Further, Vega–Fuentes states that “municipal ordinance violations which are comparable to misdemeanors are to be treated as those misdemeanors for the purposes of classification and aggregation.” (Emphasis added.) 264 Kan. at 15, 955 P.2d 1235. In our case, the Colorado crime that Rodriguez was convicted under is not comparable to a Kansas misdemeanor but is comparable to a Kansas felony. Vega–Fuentes allows using the misdemeanor classification of the comparable Kansas municipal ordinance violations when aggregating Kansas convictions. This still leaves us with no statutory guidance on how to convert an out-of-state misdemeanor that is comparable to a Kansas felony in order to make the out-of-state misdemeanor either a Kansas A or B misdemeanor. Again, there is no language, direction, or mechanism listed in the sentencing statutes as to how this is to be accomplished.
The legislative intent appears to require utilizing prior out-of-state misdemeanor convictions in determining a Kansas defendant's criminal history. But, it is fundamental to our obligation that “it is not ... the function of the appellate courts to delete language from or add language to Kansas statutes” as this is the function of the legislature. State v. Ardry, 295 Kan. 733, 737, 286 P.3d 207 (2012).
I would hold that the absence of specific statutory authority as to how to aggregate the Colorado convictions requires us to vacate the sentences imposed and remand to resentence Tio using criminal history D.