State v. Jesse ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,396
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JUSTIN R. JESSE,
Appellant.
MEMORANDUM OPINION
Appeal from Clay District Court; GRANT D. BANNISTER, judge. Opinion filed May 7, 2021.
Convictions affirmed, sentence vacated, and case remanded with directions.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: In this direct appeal, Justin Jesse presents three arguments. He first
argues there is insufficient evidence in the record to support his conviction for felony
interference with a law enforcement officer. Next, he contends his sentence is illegal, a
point the State concedes. And he concludes by arguing that the Kansas Sentencing
Guidelines Act violates his state and federal constitutional rights to a jury trial. The
record and the law persuade us that his first argument is invalid. Because of the State's
concession and our review of Jesse's sentence, we must vacate his sentence and remand
1
the case to the district court for a new sentence. And, finally, horizontal precedent
persuades us to reject his attack on the Sentencing Guidelines Act.
We affirm Jesse's convictions, vacate his sentence, and remand for further
proceedings.
After investigating, a deputy tries to arrest Jesse for trying to strangle his father.
On April 12, 2019, when someone from a residence in Idana, Kansas, called 911
and hung up the phone, the dispatcher sent a Clay County Deputy Sheriff to investigate.
When the deputy arrived, he discovered a crowd outside the house. He learned that Jesse
had fought with his father, Bobby. Bobby had dialed 911 but hung up the phone. The
deputy separated the two men, and each told him their own version of the fight.
After hearing both sides and examining the two men, the deputy decided to arrest
Jesse. His decision stemmed from the relative size and strength of father and son, the
strangulation marks on Bobby's neck, and the cut on Bobby's nose. Jesse did not want to
be arrested. He resisted.
According to the testimony, Jesse struck the deputy on the head and started
punching him with both hands. The deputy took Jesse to the ground, and, while they
struggled there, Jesse grabbed the deputy's gun and kept trying to pull it from the holster.
Jesse told the deputy that he would grab the gun and kill him. Eventually, with help from
some in the crowd, the deputy gained control and arrested Jesse for aggravated domestic
battery for the strangulation of his father, criminal threat, and interference with a law
enforcement officer.
The State charged Jesse with aggravated domestic battery, felony interference with
law enforcement, felony criminal threat, and misdemeanor battery on a law enforcement
2
officer. The jury found Jesse guilty on all counts except aggravated domestic battery; for
that charge, the jury found Jesse guilty of the lesser included offense of domestic
battery—a misdemeanor. The district court later set aside Jesse's criminal threat
conviction based on the holding in State v. Boettger, 310 Kan. 800, 807, 450 P.3d 805(2019).
The court sentenced Jesse to a suspended 10-month prison sentence with 18
months' probation. We will explain the sentencing error later.
Jesse never disputed the felony interference charge at trial.
Jesse now contends his jury could not have legally found him guilty of felony
interference with a law enforcement officer for two reasons. First, no witness testified
that the deputy with whom he fought was engaged in investigating a felony crime. And,
second, the court did not define the term "felony" in the jury instructions. Thus, since the
jury only found him guilty of misdemeanor domestic battery, he can only be guilty of
misdemeanor interference with a law enforcement officer.
Jesse's first issue is a claim of insufficient evidence. In our analysis of this issue,
we look at the charges, the jury instructions, and then the evidence. In the end, we are
convinced that sufficient evidence supports the jury's verdict. Our inquiry is guided by a
fundamental legal point.
Sufficient evidence supports a conviction on appeal when, with the evidence
viewed in a light most favorable to the State, an appellate court is convinced that a
rational fact-finder could have found the defendant guilty beyond a reasonable doubt. We
do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility
determinations. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).
3
The State charged Jesse with felony interference with law enforcement, see K.S.A.
2020 Supp. 21-5904(a)(3) and (b)(5)((A) for resisting a felony arrest. That statute makes
it unlawful to knowingly obstruct an officer discharging an official duty. K.S.A. 2020
Supp. 21-5904(a)(3). But the charge can be a misdemeanor if the officer is not engaged in
dealing with a felony and instead is concerned with a misdemeanor crime.
Both Jesse and the State agree that the offense is a felony when a person obstructs
an officer carrying out an official duty related to a felony, such as arresting a person on a
felony charge. See K.S.A. 2020 Supp. 21-5904(b)(5)(A). We rely on State v.
Hudson, 261 Kan. 535, 538-39, 931 P.2d 679 (1997), when the court held that "[t]he
touchstone for the classification of the offense is the reason for the officer's approaching
the defendant who then flees or otherwise resists." We turn now to the jury instructions.
The district court instructed the jury that it had to find the following facts to find
Jesse guilty:
"1. Deputy Paul Bishop was discharging an official duty, namely attempting to arrest Justin
Jesse for a felony crime.
"2. The defendant knowingly resisted Deputy Paul Bishop in discharging that official duty.
"3. The act of the defendant substantially hindered or increased the burden of the officer in
the performance of the officer's official duty.
"4. At the time the defendant knew or should have known that Deputy Paul Bishop was a
law enforcement officer.
"5. This act occurred on or about the 12th day of April, 2019, in Clay County, Kansas."
The jury found that the State proved each of those elements.
Jesse challenges only the first element. He says that the State presented no
evidence that a juror could rely on to find that aggravated domestic battery—the crime
Bishop was trying to arrest him for—was a felony offense. Jesse concedes, as he must,
4
that aggravated domestic battery is a felony offense. See K.S.A. 2020 Supp. 21-
5414(c)(2). But he contends while that may be obvious to legal professionals, it is the
jury that is tasked with finding that the State has proved the element, and based on the
evidence at trial, a rational juror could not so find. Our review of the record reveals that
Jesse did not contest this point at trial. The deputy was making a felony arrest and Jesse
fought with the deputy, resisting the arrest.
The State concedes that Deputy Bishop did not testify that he was trying to arrest
Jesse for a felony and the jury was not provided with the definition of a felony. But the
State argues that the jury could reasonably infer that Deputy Bishop was trying to arrest
Jesse for a felony based on several factors.
• The misdemeanor or felony nature of the crime was uncontested at trial;
• Deputy Bishop testified that he had tried to arrest Jesse for aggravated
domestic battery;
• Bobby's description of Jesse's attack on him on Deputy Bishop's body camera
footage;
• Photos of Bobby's injuries;
• Bobby's frailty when he took the stand; and
• Jesse's nephew's testimony about Jesse trying to fight through the nephew to
get to Bobby.
The key point here that was uncontested at trial is the nature of the offense for which
Deputy Bishop arrested Jesse: aggravated domestic battery. Under Hudson, the facts for
determining felony versus misdemeanor interference is the officer's reason for
approaching the defendant who then flees or resists—not the offense the defendant is
ultimately convicted of. 261 Kan. at 538-39. And here, Jesse did not contest at trial that
Deputy Bishop approached him to arrest him for a felony offense.
5
Based on the cut on Bobby's nose and the strangulation marks on his throat, the jury
could reasonably infer that Deputy Bishop was trying to arrest Jesse for a felony offense.
It is a jury's prerogative to determine the weight to be given to the evidence and draw
reasonable inferences from it. State v. Gibson, 246 Kan. 298, Syl. ¶ 3, 787 P.2d 1176(1990).
Here, the State alleged that Jesse had resisted Deputy Bishop when he had tried to
arrest Jesse for a felony, Deputy Bishop testified that he had tried to arrest Jesse for
aggravated domestic battery, and there was no suggestion at trial that Deputy Bishop had
tried to arrest Jesse for a misdemeanor charge. Given those facts, the jury could
reasonably infer that Deputy Bishop had tried to arrest Jesse for a felony.
Given our standard of review, we see no reason to reverse this conviction based on
insufficient evidence. We will now review the sentencing error.
The court used an inapplicable statute.
The State charged Jesse with knowingly obstructing an officer in the discharge of
an official duty by resisting a felony arrest. According to K.S.A. 2020 Supp. 21-
5904(b)(5)(A), that offense is a severity level 9 nonperson felony. Based on Jesse's
criminal history, his presumptive underlying prison sentence was seven to nine months.
See K.S.A. 2020 Supp. 21-6804(a).
But the court sentenced Jesse under K.S.A. 2020 Supp. 21-5904(a)(2), which is a
severity level 8 person felony under K.S.A. 2020 Supp. 21-5904(b)(4)(B). The court
imposed the guidelines sentence of 10 months in prison.
The State concedes that Jesse's sentence is illegal because it fails to conform to the
applicable statutory provisions. See K.S.A. 2020 Supp. 22-3504(c)(1). We therefore
6
vacate Jesse's sentence for interference with law enforcement and remand the matter for
resentencing. We will now review Jesse's attack on the Sentencing Guidelines Act.
We hold the Sentencing Guidelines Act does not violate the Kansas Constitution.
Jesse's final argument on appeal is that the Act violates his state and federal
constitutional rights to a jury trial because it permits judicial fact-finding of prior
convictions. Those findings, Jesse contends, enhance a defendant's sentence without first
requiring the State to prove those convictions to a jury beyond a reasonable doubt.
According to Jesse, that violates the Sixth Amendment to the United States Constitution
under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
and § 5 of the Kansas Constitution Bill of Rights.
Jesse concedes that the Kansas Supreme Court has rejected his argument about
Apprendi and criminal history scores in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781(2002). Since then, that court has reaffirmed Ivory several times. See State v. Williams,
299 Kan. 911, 941, 329 P.3d 400 (2014); State v. Baker, 297 Kan. 482, 485, 301 P.3d 706(2013). Because there is no indication that our Supreme Court is departing from its earlier
position in Ivory, this court must follow that precedent. See State v. Rodriguez, 305 Kan.
1139, 1144, 390 P.3d 903 (2017).
When we examine his Kansas Constitutional argument, we see that Jesse's claim
under the Kansas Constitution is that § 5 preserves the jury trial right as it historically
existed at common law when the state's constitution started. Hilburn v. Enerpipe Ltd.,
309 Kan. 1127, 1133-34, 442 P.3d 509 (2019). Relying on cases cited by Justice Thomas
in his Apprendi concurrence, Jesse asserts that there was an American common-law right
to a jury trial on penalty-enhancing prior convictions that predates Kansas statehood. And
because the Act relies on judicial prior-conviction findings to determine presumptive
7
sentences, Jesse concludes, the Act violates the common-law right to a jury trial
enshrined in § 5.
Horizontal precedent persuades us to reject this argument. Numerous panels of
our court have considered this argument before and rejected it. See, e.g., State v. Teters,
No. 121,632, 2020 WL 5265570 (Kan. App. 2020) (unpublished opinion), petition for
rev. filed October 2, 2020; State v. Hollon, No. 121,476, 2020 WL 3885912 (Kan. App.
2020) (unpublished opinion), petition for rev. filed August 5, 2020; State v. Lovett, No.
121,287, 2020 WL 3579874 (Kan. App. 2020) (unpublished opinion), petition for rev.
filed August 3, 2020; State v. Davis, No. 121,662, 2020 WL 3579911 (Kan. App. 2020)
(unpublished opinion), petition for rev. filed July 28, 2020; State v. Billoups, No.
120,040, 2020 WL 1969356 (Kan. App. 2020) (unpublished opinion), rev. denied 312
Kan. ___ (September 23, 2020); State v. Brown, No. 120,590, 2020 WL 1897361 (Kan.
App. 2020) (unpublished opinion), petition for rev. filed May 18, 2020. Each panel has
rejected Jesse's position and so do we.
We affirm Jesse's convictions, vacate his sentence, and remand for resentencing.
8