State v. Talley ( 2020 )

NOT DESIGNATED FOR PUBLICATION
Nos. 122,274
122,275
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SAMUEL SCOTT TALLEY,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed December 18,
2020. Affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HILL, P.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: On appeal Samuel Scott Talley claims his sentence is illegal,
arguing the district court improperly scored his 2011 Missouri conviction for domestic
assault in the second degree as a person felony to enhance the length of his sentence in
this case under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018
Supp. 21-6801 et seq. Because we find the district court did not err in scoring his 2011
Missouri conviction as a person crime, we affirm Talley's sentence.
1
FACTS
In July 2018, Talley was charged with one count of felony burglary and one count
of misdemeanor theft. The district court granted Talley's request for bond and released
him on a work release program. While participating in work release in November 2018,
Talley failed to check back into the supervised facility. He was then charged in a second
case with felony aggravated escape from custody.
On February 13, 2019, as a part of a global plea agreement, Talley pled no contest
to the charges in both his July 2018 and November 2018 cases. The district court
accepted Talley's pleas and found him guilty of all the crimes charged. A presentence
investigation (PSI) report was ordered, and sentencing was set for a later date.
The plea agreement contemplated Talley's criminal history score would be C.
However, the PSI report determined Talley's criminal history score was B because he had
two prior person felony convictions: a 2000 Kansas conviction for aggravated battery
and a 2011 Missouri conviction for domestic assault in the second degree. Talley did not
challenge the previous Kansas conviction.
At the sentencing hearing, Talley objected to the 2011 Missouri conviction being
scored as a conviction because he had participated in a Missouri program that, upon
successful completion, caused the charges to be dismissed. Talley claimed the Missouri
charges did not result in a conviction. The sentencing hearing was continued to allow the
State time to verify the 2011 Missouri conviction.
At the next sentencing hearing on May 7, 2019, the State introduced evidence of
Talley's 2011 Missouri conviction without any objection. Specifically, the State
introduced a certified copy of the Missouri court's docket sheet, the final order showing
Talley's guilty plea and sentence, the information, and the probable cause affidavit. The
2
documents admitted reflected Talley pled guilty to and was convicted of knowingly
causing physical injury to a family or household member by pushing her to the ground,
climbing on top of her, banging her head against the floor, and choking her with his
hands until she passed out. The 2011 Missouri conviction resulted in a suspended
sentence with Talley placed on probation for five years. Given these documents, the
district court overruled Talley's objection to scoring the Missouri conviction as a person
felony. It found Talley's criminal history score was B. However, before the district court
could proceed with sentencing, Talley asked to withdraw his pleas. In response, the
district court continued the sentencing hearing to address his motion to withdraw his
pleas. At a hearing before the final sentencing hearing, the district court heard and denied
Talley’s motion to withdraw his pleas.
At the final sentencing hearing on August 14, 2019, Talley again objected to the
2011 Missouri conviction being scored as a person felony even though his attorney did
not support the objection. The district court overruled the objection and found Talley's
criminal history score was B. After denying Talley's motion for downward dispositional
departure, the district court followed the terms of the parties' plea agreement and
sentenced Talley as follows: 27 months in prison on the felony burglary charge; 12
months in jail on the misdemeanor theft charge to run concurrent with the burglary
sentence; and 18 months in prison on the felony aggravated escape from custody charge
to run consecutive to all other cases. The two cases were consolidated on appeal.
TALLEY'S CRIMINAL HISTORY SCORE IS B.
Standard of Review
The determination of an offender's criminal history score is governed by the
KSGA. Whether a sentencing court has correctly interpreted and applied the provisions
of the KSGA is a question of law which we review de novo. State v. Keel, 302 Kan. 560,
3
571-72, 357 P.3d 251 (2015). Likewise, whether a prior conviction was properly
classified as a person or nonperson felony crime for criminal history purposes is a
question of law subject to unlimited review. State v. Dickey, 301 Kan. 1018, 1034, 350
P.3d 1054 (2015).
Discussion
On appeal, Talley presents one issue—whether the classification of his 2011
Missouri conviction for domestic assault in the second degree as a person crime was
properly scored. Specifically, he alleges his 2011 conviction most resembles Kansas'
statute for aggravated battery. When comparing the elements of those two offenses,
Talley argues the Missouri offense is broader and, as such, the district court erred when it
failed to score his prior out-of-state conviction as a nonperson crime.
Conversely, the State asserts Talley applied the wrong Kansas statute to support
his claim the Missouri conviction should have been classified as a nonperson crime.
Specifically, the State alleges the 2011 Missouri statute contains various means to
commit the crime of domestic assault in the second degree, and, to complete the proper
analysis, it is imperative to establish which version of that crime Talley committed. Once
the appropriate version is established, we must compare the elements of his 2011
Missouri offense to the elements of the comparable Kansas statute. The State argues
Talley failed to do this, opting instead to compare the elements of each version of the
Missouri offense to each of the elements for the crime of domestic battery in Kansas.
Upon doing this, the State contends the most similar offense in Kansas is domestic
battery, not aggravated battery. When comparing the elements of Talley's 2011 Missouri
conviction to Kansas' domestic battery statute, one observes the Missouri offense is
identical to or narrower than the Kansas offense. As such, the State argues the district
court properly scored the prior 2011 Missouri conviction as a person offense.
4
Before determining whether Talley's prior out-of-state conviction is a person or
nonperson crime, we must determine which legal framework to apply. At the outset, the
parties correctly assert the 2019 amendments to K.S.A. 21-6811 do not apply in this case
because Talley committed the underlying crimes before those amendments went into
effect. See K.S.A. 2018 Supp. 21-6811(e)(3); see also Keel, 302 Kan. at 590 ("[T]he
classification of a prior conviction . . . as a person or nonperson offense for criminal
history purposes under the KSGA is determined based on the classification in effect for
the comparable Kansas offense at the time the current crime of conviction was
committed."). Because Talley committed the underlying crimes in July and November
2018, respectively, K.S.A. 2018 Supp. 21-6811 applies.
In considering an out-of-state conviction, the sentencing court makes two
classifications after the State proves the existence of the prior conviction. First, the court
determines under K.S.A. 2018 Supp. 21-6811(e) whether the prior conviction is a
misdemeanor or a felony based on the law of the state where the defendant was
convicted. "If a crime is a felony in the convicting jurisdiction, it will be counted as a
felony in Kansas." K.S.A. 2018 Supp. 21-6811(e)(2)(A). Here, Talley's prior Missouri
conviction was a felony—a fact Talley does not dispute on appeal. Second, the
sentencing court determines whether the prior out-of-state conviction is a person or
nonperson offense. K.S.A. 2018 Supp. 21-6811(e)(3). Talley contends the Missouri
conviction was improperly classified as a person felony.
K.S.A. 2018 Supp. 21-6811(e)(3) requires the sentencing court to classify the prior
out-of-state conviction as a person or nonperson offense by comparing the out-of-state
offense to a similar Kansas statute in effect at the time the underlying crimes were
committed. If there is no comparable Kansas crime, the sentencing court must classify the
prior conviction as a nonperson crime. However, if there is a comparable crime and
Kansas classifies it as a person crime, the out-of-state conviction must also be scored as a
person crime. K.S.A. 2018 Supp. 21-6811(e)(3).
5
Our Supreme Court defined the term "comparable offense" as used in K.S.A. 2018
Supp. 21-6811(e)(3) in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). Specifically,
it held the analysis of whether crimes are comparable requires a comparison of the
elements of the out-of-state crime to the elements of the Kansas crime. If the out-of-state
crime did not possess elements identical to or narrower than the elements of the Kansas
offense to which it was being compared, the out-of-state conviction had to be classified
as a nonperson offense. 307 Kan. at 561-62. Furthermore, in making the comparison
between an out-of-state crime and a comparable Kansas crime, we must consider not only
the plain language of the statute, but also the relevant statutory definitions and the
interpretation of the statutory elements in state judicial opinions. See State v. Gensler,
308 Kan. 674, 685, 423 P.3d 488 (2018). The rule outlined in Wetrich also applies in this
case as the Kansas Supreme Court decided Wetrich in March 2018—approximately four
months before Talley committed the first underlying crime in this case. See State v.
Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019) (finding Wetrich inapplicable to
sentences finalized before Wetrich was decided).
Having determined the proper legal framework to apply, we turn to consider one
additional wrinkle—which approach to utilize in comparing the elements of the Missouri
statute to the elements of the comparable Kansas offense. The Kansas Supreme Court
identified two different approaches in Dickey, 301 Kan. at 1037-38. First, it determined a
sentencing court must use a categorical approach when the statute forming the basis of
the defendant's prior conviction contains a single set of elements constituting the crime.
The sentencing court then compares the elements of the prior conviction with the
elements of the comparable crime in Kansas. If the elements of the prior conviction are
identical to or narrower than the elements of the Kansas offense, the prior conviction may
be counted as a predicate offense for sentencing enhancement purposes. 301 Kan. at 1037
(applying Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438[2013]).
6
Second, the Dickey court determined a sentencing court must apply a modified
categorical approach when the statute forming the basis of the defendant's prior
conviction is divisible—i.e., a statute which includes multiple, alternative versions of the
crime. Under these circumstances, a sentencing court cannot conclude that a prior out-of-
state offense constitutes a sentence-enhancing predicate offense by merely analyzing the
elements of the out-of-state statute. Rather, the Kansas Supreme Court noted in these
limited situations that a sentencing court is permitted to examine certain documents to
determine which of the statute's alternative elements formed the basis of the defendant's
prior conviction. Such documents include charging documents, plea agreements, jury
instructions, verdict forms, transcripts of plea colloquies, and transcripts of findings of
fact and conclusions of law from a bench trial. Once the alternative elements are
determined, the sentencing court then compares those elements to the elements of the
relevant Kansas offense. If the elements of the prior conviction are identical to or
narrower than the elements of the comparable Kansas offense, the prior conviction may
be counted as a predicate offense for sentencing enhancement purposes. See Dickey, 301
Kan. at 1037-39.
Now that both the proper legal framework and the appropriate approach have been
determined, we turn to the merits. Talley's PSI report shows he was convicted of
domestic assault in the second degree in violation of Mo. Rev. Stat. § 565.073. The 2011
version of this statute provides:
"1. A person commits the crime of domestic assault in the second degree if the
act involves a family or household member or an adult who is or has been in a continuing
social relationship of a romantic or intimate nature with the actor, as defined in section
455.010, RSMo, and he or she:
(1) Attempts to cause or knowingly causes physical injury to such family or
household member by any means, including but not limited to, by use of a deadly weapon
or dangerous instrument, or by choking or strangulation; or
7
(2) Recklessly causes serious physical injury to such family or household
member; or
(3) Recklessly causes physical injury to such family or household member by
means of any deadly weapon.
"2. Domestic assault in the second degree is a class C felony." Mo. Rev. Stat.
§ 565.073 (2011).
As Mo. Rev. Stat. § 565.073 (2011) contains several alternative means to commit
the same crime, the statute is divisible. See United States v. Doyal, 894 F.3d 974, 975-77
(8th Cir. 2018) (applying Missouri state law and finding 2004 version of Mo. Rev. Stat.
§ 565.073—which is identical to the 2011 version—divisible). As the PSI report does not
indicate the alternative for which Talley was convicted, the district court had to apply the
modified categorical approach. The modified categorical approach allowed the State to
provide limited documents from the 2011 Missouri case file for the district court to
determine under which subpart of the statute Talley was convicted. The State provided
the district court with four relevant documents: a certified copy of the Missouri court's
docket sheet; the final order showing Talley's guilty plea and sentence; the information,
i.e., charging document; and the probable cause affidavit. The documents established
Talley pled guilty to and was convicted of the first alternative: knowingly causing
physical injury to a family or household member by pushing her to the ground, climbing
on top of her, banging her head against the floor, and choking her with his hands until she
passed out. See Mo. Rev. Stat. § 565.073.1(1) (2011).
Talley now asserts Mo. Rev. Stat. § 565.073 (2011) is indivisible and the closest
Kansas offense for comparison is aggravated battery, as defined in K.S.A. 2018 Supp. 21-
5413(b), when he committed domestic assault in 2011. In comparing each subsection of
each statute, Talley asserts that all the elements of the Missouri statute are broader than
the Kansas statute and, as such, the district court had to find the prior Missouri conviction
could not be scored as a person crime. On the other hand, the State argues Mo. Rev. Stat.
§ 565.073 (2011) is divisible and the supporting documents reviewed by the district court
8
reflect Talley was convicted of the first alternative version of the Missouri statute. The
State urges us to compare the elements of the first alternative contained in the Missouri
statute to the Kansas offense for domestic battery as defined in K.S.A. 2018 Supp. 21-
5414(a)(1), which the State asserts is the most similar Kansas offense.
The State's approach is persuasive. Talley fails to recognize Mo. Rev. Stat.
§ 565.073 (2011) is divisible. We only need to find one felony in Kansas to be identical
to or narrower than Talley's 2011 Missouri conviction to elevate his criminal history
score to B. We are not required to perform a detailed analysis of multiple Kansas statutes
once we have found a comparable statute. As explained below, we find K.S.A. 2018
Supp. 21-5414(a)(1) to be a comparable statute. This statute provides, in pertinent part:
"Domestic battery is . . . [k]nowingly or recklessly causing bodily harm to a
person with whom the offender is involved or has been involved in a dating relationship
or a family or household member." K.S.A. 2018 Supp. 21-5414(a)(1).
Before proceeding further, we must briefly discuss Kansas' definitions for
knowing or reckless conduct and for bodily harm. When we compare K.S.A. 2018 Supp.
21-5414(a)(1) to Mo. Rev. Stat. § 565.073 (2011), we find both require knowing conduct,
with Kansas also allowing for the conduct to be done recklessly. The term "knowingly" is
almost identically defined in both Missouri and Kansas. Compare Mo. Rev. Stat.
§ 562.016.3 (2011) ("A person 'acts knowingly', or with knowledge, [1] With respect to
his conduct or to attendant circumstances when he is aware of the nature of his conduct or
that those circumstances exist; or [2] With respect to the a result of his conduct when he
is aware that his conduct is practically certain to cause that result.") with K.S.A. 2018
Supp. 21-5202(i) ("A person acts 'knowingly,' or 'with knowledge,' with respect to the
nature of such person's conduct or to circumstances surrounding such person's conduct
when such person is aware of the nature of such person's conduct or that the
circumstances exist. A person acts 'knowingly,' or 'with knowledge,' with respect to a
9
result of such person's conduct when such person is aware that such person's conduct is
reasonably certain to cause the result."). This comparison supports our finding the
statutes for the requisite intent are the same as or identical to each other.
When looking for Kansas' definition of the term "bodily harm," we see it is not
statutorily defined; however, Kansas courts have long defined it as "'"any touching of the
victim against [the victim's] will, with physical force, in an intentional[,] hostile[,] and
aggravated manner."' State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877 (1984); State v.
Livingston, 272 Kan. 853, 859, 35 P.3d 918 (2001)." State v. Robinson, 306 Kan. 1012,
1027, 399 P.3d 194 (2017). This definition does not necessarily require that a victim
experience physical pain or bodily impairment, just that a victim was touched in an
offensive manner with physical force and without consent. Some Kansas cases support
such an interpretation. See, e.g., State v. Davis, No. 116,749, 2017 WL 6625550, at *3
(Kan. App. 2017) (unpublished opinion) (finding Oregon statute criminalizing throwing
bodily substances at corrections officers comparable to Kansas crime of battery); State v.
Day, No. 113,171, 2015 WL 7190602, at *3 (Kan. App. 2015) (unpublished opinion)
(evidence of defendant intentionally spitting on law enforcement officer supported
battery conviction).
With these two definitions in mind, we direct our attention to the more comparable
statute as the State indicates, K.S.A. 2018 Supp. 21-5414(a)(1), which, again, provides in
pertinent part:
"Domestic battery is . . . [k]nowingly or recklessly causing bodily harm to a
person with whom the offender is involved or has been involved in a dating relationship
or a family or household member."
When comparing the elements of Mo. Rev. Stat. § 565.073.1(1) (2011) to the
elements of K.S.A. 2018 Supp. 21-5414(a)(1), it becomes clear the Missouri statute is
10
identical to or narrower than its Kansas counterpart. First, we must analyze the level of
culpability included in both statutes. The relevant Kansas statute allows for domestic
battery to be committed either knowingly or recklessly, while the relevant Missouri
provision provides that domestic assault in the second degree be done knowingly. The
Missouri provision is necessarily identical to or narrower than the Kansas version for two
reasons: (1) As noted above, Kansas and Missouri define knowingly almost identically;
and (2) in Kansas, knowingly necessarily encompasses anything that is done recklessly.
See K.S.A. 2018 Supp. 21-5202(c) ("Proof of a higher degree of culpability than that
charged constitutes proof of the culpability charged. If recklessness suffices to establish
an element, that element also is established if a person acts knowingly or intentionally.").
So when analyzing Missouri's definition of knowingly in this context, the same must also
be true.
Second, we must analyze Kansas' definitions of "dating relationship" and "family
or household member" along with Missouri's definition of "family or household
member." Kansas defines "dating relationship" as "a social relationship of a romantic
nature." K.S.A. 2018 Supp. 21-5414(e)(1). When considering if such a relationship
exists, courts consider the nature of the relationship, the length of time it existed, the
frequency of interaction between the parties, and the time since the relationship was
terminated, if applicable. K.S.A. 2018 Supp. 21-5414(e)(1).
Kansas defines "'family or household member'" as:
"[P]ersons 18 years of age or older who are spouses, former spouses, parents or
stepparents and children or stepchildren, and persons who are presently residing together
or who have resided together in the past, and persons who have a child in common
regardless of whether they have been married or who have lived together at any time.
'Family or household member' also includes a man and woman if the woman is pregnant
and the man is alleged to be the father, regardless of whether they have been married or
have lived together at any time." K.S.A. 2018 Supp. 21-5414(e)(2).
11
Mo. Rev. Stat. § 455.010(5) (2011) defines "'[f]amily' or 'household member'" as:
"[S]pouses, former spouses, adults related by blood or marriage, adults who are presently
residing together or have resided together in the past, an adult who is or has been in a
continuing social relationship of a romantic or intimate nature with the victim, and adults
who have a child in common regardless of whether they have been married or have
resided together at any time."
Upon comparing these definitions, we observe Missouri's definition of "family or
household member" is nearly identical to and appears to be narrower than Kansas'
definitions of "dating relationship" and "family or household member." Both definitions
of "family or household member" include the following identical terms: spouses, former
spouses, adults who currently reside together or have resided together in the past, and
adults who have a child in common regardless of whether they lived together in the past.
Missouri's definition also encompasses Kansas' definition of "dating relationship" when it
provides that a "family or household member" can include "an adult who is or has been in
a continuing social relationship of a romantic or intimate nature with the victim."
Compare Mo. Rev. Stat. § 455.010(5) (2011) with K.S.A. 2018 Supp. 21-5414(e)(1).
Furthermore, Missouri's definition includes the term "adults related by blood or
marriage," which encompasses parents, stepparents, children, and stepchildren as outlined
in Kansas' definition of "family or household member." The only difference between the
two definitions of "family or household member" is the fact Kansas' definition provides
an additional class of potential victims Missouri's does not: a man and a woman if the
woman is pregnant and the man is alleged to be the father, regardless of whether they
have been married or have lived together at any time. With this distinction, we find the
Missouri definition is narrower because it does not provide for such a scenario.
Finally, we compare Kansas' definition of "bodily harm" to Missouri's definition
of "physical injury." As discussed above, Kansas' definition of "bodily harm" includes
offensive touching of a victim using physical force without the victim's consent. See
12
Robinson, 306 Kan. at 1027. This does not necessarily mean the victim must sustain
some sort of physical pain or physical impairment. For example, expelling bodily fluids
like urine or saliva onto a victim could constitute "bodily harm" in Kansas even though
such an act may not cause the victim pain or impairment. See Davis, 2017 WL 6625550,
at *3; Day, 2015 WL 7190602, at *3. This is not true of Missouri's definition of "physical
injury" because the Missouri courts have interpreted it as meaning a victim must sustain
some sort of physical pain or impairment, no matter how slight. See, e.g., State v.
McGuire, 924 S.W.2d 38, 39-40 (Mo. Ct. App. 1996) (finding in context of committing
assault of law enforcement officer in third degree, defendant did not cause officer
physical pain or cause officer to fear "'immediate physical injury'" by simply poking
officer's chest). Thus, Missouri's definition of physical injury is narrower than Kansas'
definition of bodily harm because Missouri's definition does not include the broad range
of conduct associated with touching another person without that person's consent in a
rude, insulting, or angry manner.
In conclusion, the elements of Mo. Rev. Stat. § 565.073.1(1) (2011) are identical
to or narrower than K.S.A. 2018 Supp. 21-5414(a)(1). Because K.S.A. 2018 Supp. 21-
5414(a)(1) is a person crime, see K.S.A. 2018 Supp. 21-5414(c)(1), and is the most
comparable crime in Kansas to Talley's conviction under Mo. Rev. Stat. § 565.073.1(1)
(2011), the Missouri conviction was properly scored as a person felony under the KSGA.
The district court did not err in scoring Talley's 2011 Missouri conviction as a person
felony to elevate Talley's criminal history score to B; therefore, Talley's sentence was not
illegal.
Affirmed.
13