Opinion
No. 106,734.
2012-11-9
STATE of Kansas, Appellee, v. Moses MORRIS, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdetter, judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdetter, judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM:
Moses Morris appeals the district court's determination of his criminal history score. He argues that the district court erred in classifying his Missouri conviction for resisting or interfering with arrest under Mo.Rev.Stat. § 575.150 (2006) as a person felony based on the determination that it was comparable to the Kansas offense of fleeing or attempting to elude a police officer under K.S .A.2011 Supp. 8–1568. Finding no error, we affirm the district court's judgment.
On October 8, 2010, Morris pled no contest to one count of possession of marijuana with intent to distribute and one count of attempting to elude a police officer. The district court ordered a presentence investigation (PSI) report to be prepared and set sentencing for a later date. The PSI report indicated that Morris had a criminal history score of A based on two prior person felonies and three prior person misdemeanors that were converted into one person felony. One of the person felonies was a Missouri conviction for resisting or interfering with arrest under Mo.Rev.Stat. § 575.150. The PSI report did not indicate which Kansas offense was used as a comparable offense for the purpose of classifying the Missouri conviction as a person felony.
On March 3, 2011, Morris filed a motion objecting to his criminal history score. He argued that the Missouri offense of resisting arrest under Mo.Rev.Stat. § 575.150 is not comparable to the Kansas offense of fleeing or attempting to elude a police officer under K.S.A.2011 Supp. 8–1568 because the Missouri offense is classified as an offense against the administration of justice, whereas the Kansas offense is classified as a traffic offense. He also argued that the two offenses are not comparable because they have different elements. Morris contended that because there is no Kansas offense comparable to his Missouri offense, the conviction should be classified as a nonperson felony under K.S.A. 21–4711(e) and thus his criminal history score should be amended to B.
The sentencing hearing was held the next day, at which Morris renewed the arguments made in his motion objecting to his criminal history score. The State argued that although Mo. Rev. Stat § 575.150 and K.S.A.2011 Supp. 8–1568 have different elements, they proscribe similar conduct and thus should be found to be comparable offenses. The State also noted that the Missouri offense prohibits fleeing in a manner that creates a substantial risk of serious physical injury or death, which would almost certainly be classified as a person offense in Kansas. The district court overruled Morris' objection to his criminal history score, finding that although there are technical differences between the two offenses, they share core similarities and could be considered comparable offenses under K.S.A. 21–4711(e). The district court sentenced Morris based on a criminal history score of A and imposed a controlling sentence of 37 months' imprisonment, but the district court granted Morris' motion for a downward dispositional departure to probation. Morris timely appealed the district court's determination of his criminal history score.
On appeal, Morris again contends that his Missouri conviction for resisting or interfering with arrest under Mo.Rev.Stat. § 575.150 is not comparable to the Kansas offense of fleeing or attempting to elude a police officer under K.S.A.2011 Supp. 8–1568. He argues that because those two offenses are not comparable, this court must classify his Missouri conviction as a nonperson felony under K.S.A. 21–4711(e) and remand the case for resentencing with a criminal history score of B. The State argues that while the two offenses do not have identical elements, they are sufficiently similar to constitute comparable offenses under K.S.A. 21–4711(e) and thus the district court did not err in classifying Morris' Missouri conviction as a person felony and refusing to amend his criminal history score.
The determination of an offender's criminal history score is governed by provisions of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. Whether a district court has correctly interpreted and applied the provisions of the KSGA is a question of law subject to de novo review. State v. Barajas, 43 Kan.App.2d 639, 642, 230 P.3d 784 (2010). To the extent that resolution of this issue requires this court to interpret the statutory language of Mo.Rev.Stat. § 575.150 as well as allegedly comparable Kansas offenses, this court has unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
The classification of out-of-state convictions for criminal history purposes is governed by K.S.A. 21–4711(e), which states:
“(e) Out-of-state convictions and juvenile adjudications will 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.... The facts required to classify out-of-state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence.”
Under K.S.A. 21–4711(e), the sentencing court is required to classify out-of-state convictions as person or nonperson by referring to comparable Kansas offenses in effect on the date the out-of-state crime was committed. State v. Williams, 291 Kan. 554, 560, 244 P.3d 667 (2010). In determining what constitutes a comparable offense, Kansas courts have found that while it is necessary to compare the elements of each offense, the elements do not need to be identical. The essential question is whether the offenses are similar in nature and cover similar conduct. See State v. Vandervort, 276 Kan. 164, 178–79, 72 P.3d 925 (2003); Barajas, 43 Kan.App.2d at 643–44.
Mo.Rev.Stat. § 575.150, the prior offense to which Morris pled guilty, states in relevant part:
“1. A person commits the crime of resisting ... arrest, detention, or stop if, knowing that a law enforcement officer is making an arrest, or attempting to lawfully detain or stop an individual or vehicle, or the person reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully detain or lawfully stop an individual or vehicle, for the purpose of preventing the officer from effecting the arrest, stop or detention, the person:
(1) Resists the arrest, stop or detention of such person by using or threatening the use of violence or physical force or by fleeing from such officer;
....
“3. A person is presumed to be fleeing a vehicle stop if that person continues to operate a motor vehicle after that person has seen or should have seen clearly visible emergency lights or has heard or should have heard an audible signal emanating from a law enforcement vehicle pursuing that person.
....
“5. Resisting ... an arrest for a felony is a class D felony. Resisting an arrest, detention or stop by fleeing in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person is a class D felony.”
To prove a violation of Mo.Rev.Stat. § 575.150, the State must prove: (1) the defendant, having knowledge that a law enforcement officer is making an arrest or a stop of a person or vehicle, (2) the defendant resisted the arrest or stop by using or threatening to use violence or physical force or by fleeing from the officer, and (3) the defendant did so with the purpose of preventing the officer from completing the arrest or stop. See State v. Clark, 263 S.W .3d 666, 673 (Mo.App.2008), overruled in part on other grounds by State v. Daws, 311 S.W.3d 806 (Mo.2010). To elevate the crime to a felony, the State must also prove that (4) the defendant either resisted arrest for a felony or fled in a manner that created a substantial risk of serious physical injury or death to any person. State v. St. George, 215 S.W.3d 341, 346 (Mo.App.2007).
In comparison, K.S.A.2011 Supp. 8–1568 prohibits drivers from fleeing or attempting to elude a police officer. It states in relevant part:
“(a)(1) Any driver of a motor vehicle who willfully fails or refuses to bring such driver's vehicle to a stop for a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty as provided by subsection (c)(1), (2) or (3).
(2) Any driver of a motor vehicle who willfully otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty as provided by subsection (c)(1), (2) or (3).
“(b) Any driver of a motor vehicle who willfully fails or refuses to bring such driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, and who: (1) Commits any of the following during a police pursuit: (A) Fails to stop for a police road block; (B) drives around tire deflating devices placed by a police officer; (C) engages in reckless driving as defined by K.S.A. 8–1566 and amendments thereto; (D) is involved in any motor vehicle accident or intentionally causes damage to property; or (E) commits five or more moving violations; or
(2) is attempting to elude capture for the commission of any felony, shall be guilty as provided in subsection (c)(4).
....
“[c](4) Violation of subsection (b) is a severity level 9, person felony.”
To prove a violation of K.S.A.2011 Supp. 8–1568, the State must prove: (1) The defendant was driving a motor vehicle, (2) the defendant was signaled by a police officer to stop, (3) the defendant intentionally failed or refused to stop or otherwise fled or attempted to elude a pursuing police vehicle, (4) the police officer giving the signal was in uniform and prominently displaying his badge, and (5) the police vehicle was appropriately marked as an official police vehicle. To elevate the crime to a felony, the State must prove that (6) certain aggravating circumstances occurred, such as the defendant engaged in reckless driving, committed five or more moving violations, or attempted to elude capture for any felony. See PIK Crim.3d 70.09; State v. Beeney, 34 Kan.App.2d 77, 81–82, 114 P.3d 996 (2005).
Morris' essential argument is that Mo.Rev.Stat. § 575.150 covers a broader range of conduct than K.S.A.2011 Supp. 8–1568 and thus the two cannot be comparable offenses for purposes of K.S.A. 21–4711(e). Morris notes that the Missouri offense does not require that the defendant be the driver of a motor vehicle and does not require that the police officer be in uniform or be in a vehicle containing police markings. And unlike the Kansas offense, the Missouri offense prohibits non-motor-vehicle flight and the use or threat of physical force or violence. Morris also argues that the two offenses are dissimilar because Mo.Rev.Stat. § 575.150 is located in Missouri's general criminal code, whereas K.S.A.2011 Supp. 8–1568 is located in Kansas' motor vehicle code.
But as the State points out, although the elements are different, the two offenses share some core similarities. Both apply to situations in which a law enforcement officer is attempting to conduct an arrest or stop and the defendant, knowing that a law enforcement officer is attempting to conduct an arrest or stop, purposefully interferes with that action. And both offenses elevate in severity when the defendant's interference increases the risk of harm to the law enforcement officer or to any other person. In other words, both offenses criminalize conduct that intentionally interferes with the performance of law enforcement duties and are designed to encourage citizens to cooperate with law enforcement by punishing those who make the officer's job more difficult and dangerous. Cf. State v. Carter, 30 Kan.App.2d 1247, 1253, 57 P.3d 825 (2002), rev. deniedllS Kan. 966 (2003) (comparing K.S.A. 8–1568 and K.S.A. 21–3808).
Furthermore, an out-of-state offense may have more than one comparable Kansas offense, depending on the exact nature of the underlying conduct involved. See State v. Donaldson, 35 Kan.App.2d 540, 544–45, 133 P.3d 154 (2006) (Oklahoma offense of omitting to provide for minor children could be comparable to either Kansas offense of criminal nonsupport or Kansas offense of child endangerment). Thus, the fact that an out-of-state offense covers a broader range of conduct than the allegedly comparable Kansas offense is not necessarily fatal to a finding that the offenses are comparable for purposes of K.S.A. 21–4711(e).
Where an out-of-state offense has more than one comparable Kansas offense, Kansas courts should look to the underlying facts of the defendant's out-of-state conviction to determine which Kansas offense is the proper comparable offense. See Donaldson, 35 Kan.App.2d at 545;State v. Schultz, 22 Kan.App.2d 60, 62–63, 911 P.2d 1119 (1996) (looking to underlying facts of defendant's Missouri burglary conviction to determine whether defendant had burglarized a “dwelling” for purposes of Kansas offense of burglary). Here, Morris 1 Missouri conviction was based on his guilty plea to the following charge:
“The Prosecuting Attorney of the County of Jackson, State of Missouri, upon information and belief, charges that the defendant, Moses Morris Jr., in violation of Section 575.150, RSMo, committed the Class D Felony of Resisting Arrest ... in that on or about [the] 3rd day of May, 2007, in the County of Jackson, State of Missouri, Police Officer Beck, a law enforcement officer, was making an arrest of defendant for Careless and Imprudent Driving, and the defendant knew or reasonably should have known that the officer was making an arrest, and, for the purpose of preventing the officer from effecting the arrest, the defendant resisted by fleeing from the officer, that the defendant fled in such a manner that created a substantial risk of serious physical injury or death to other persons in that defendant weaved in and out of oncoming traffic and disobeyed numerous traffic control signals.”
Morris was the driver of a motor vehicle who ignored an apparent signal from a law enforcement officer to stop and instead fled in a manner consistent with reckless driving as defined by K.S.A. 8–1566 (“Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.”). Based on these facts, it is clear that the conduct for which Morris was punished under Mo.Rev.Stat. § 575.150 was similar to conduct constituting a person felony under K.S.A.2011 Supp. 8–1568. In these circumstances, the two offenses were comparable. Thus, we conclude the district court did not err in finding that Morris' Missouri conviction under Mo.Rev.Stat. § 575.150 was comparable to the Kansas offense of felony fleeing or attempting to elude a police officer under K.S.A.2011 Supp. 8–1568 for purposes of determining Morris' criminal history score.
Affirmed.