Opinion
No. 112,544.
12-18-2015
STATE of Kansas, Appellee, v. Randy D. STURGIS, Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM.
Randy D. Sturgis appeals his convictions for theft and criminal possession of a firearm. First, he argues the evidence was insufficient to support his convictions. Second, he argues the State engaged in prosecutorial misconduct during closing arguments. Finally, he argues the district court erred in scoring a previous out-of-state conviction as a person felony for purposes of calculating his criminal history. For the reasons stated below, we affirm Sturgis' convictions. We find that the evidence presented at trial was sufficient to support his convictions of theft and criminal possession of a firearm. Regarding his claim of prosecutorial misconduct, we find no reasonable probability that any alleged improper or inaccurate statements affected the outcome of the trial in light of the entire record. Given the district court erred in scoring a previous out-of-state conviction as a person felony, however, we must vacate the sentence imposed and remand the case for resentencing.
Facts
In January 2013, Sturgis was dating Carland Ballinger. Sturgis lived with Ballinger and his aunt, Elda Brown, at Brown's house. At that time, Ballinger was working at Casey's General Store (Casey's) in Derby. On January 10, 2013, Ballinger testified that her shift started at 4 p.m. During her shift, a man armed with a gun came into Casey's and demanded money. Ballinger complied. Initially, Ballinger told police that she did not know who the culprit was.
Sturgis and Ballinger broke up in July 2013. Also in July, Ballinger contacted the Derby Police Department. Ballinger was interviewed by Officer Tim Nelson. During the interview, Ballinger reported that it was Sturgis who had come to Casey's on January 10, 2013, and stolen money from the store. After Ballinger made this report, Sturgis was arrested and charged with one count of criminal possession of a firearm by a convicted felon and one count of theft. A jury trial began on May 27, 2014.
Ballinger was the first witness to testify at the trial. Ballinger testified she was living with Sturgis and Brown at Brown's residence in January 2013. She stated that while she was getting ready for work on January 10, 2013, Sturgis told her he was going to rob her while she was at work. Ballinger testified she thought he was joking. After this conversation, Ballinger went to work at Casey's.
Ballinger stated that Sturgis came to Casey's to see her later that day. While he was there, Sturgis purchased some cigarettes and left after 10 or 15 minutes. According to Ballinger, Sturgis came back to Casey's a little more than an hour later wearing a black puffy coat with a black bandanna over his face. Ballinger testified that she starting shaking her head as if to say, “[N]o, no, no.” Ballinger said it was at this point that Sturgis quickly pulled the bandanna down off of his face and back up again. Sturgis then told her, “ ‘Put the money in the bag, you stupid bitch.’ “ Ballinger then bent down to open the store's safe because there was money in it. Ballinger ultimately retrieved a money bag from the safe that contained bills but no change.
While Ballinger was getting the money bag, she looked up and saw a handgun in her face. She then opened the register and put all the money from the register into the money bag with the exception of a single one-dollar bill. Ballinger testified that she handed the money bag to Sturgis, and he left the store. As he was leaving, Ballinger said she reached for the phone and called 911.
When the police arrived, Ballinger did not tell them that it was Sturgis who had robbed her. She explained at trial that she did not identify Sturgis as the perpetrator because she was scared of Sturgis. At some point after the police arrived, Ballinger was transported to the police station for an interview with Officer Kevin Jones of the Derby Police Department. At no point during the interview did Ballinger tell Officer Jones that Sturgis was the perpetrator. Ballinger explained to Officer Jones, however, that she complied with that part of store protocol requiring she give the person demanding money what he or she wanted but failed to comply with that part of the protocol requiring she pull the bill in the cash register that would have triggered a silent alarm upon removal. Ballinger explained to Officer Jones that she simply panicked and forgot to pull it. Ballinger testified at trial that she did not realize she had forgotten to pull the one-dollar bill until her interview with Officer Jones.
On cross-examination, Ballinger said that she had been trained to use a cash register at Casey's but not how to trigger the silent alarm by pulling the single bill. Ballinger went on to explain, however, that she learned about the silent alarm by accident when she pulled the triggering bill without knowing what it was. Ballinger also admitted during cross-examination that she developed an addiction to methamphetamine at some point during the time period she worked at Casey's. She went on to say, however, that she was not using methamphetamine on January 10, 2013, and had not used the drug for years before that date.
Ballinger testified that she called her best friend to pick her up on January 10, 2013, after her interview with the police about the armed theft that night. In addition to her best friend, Ballinger also called Ronald Betts because she believed Sturgis was with Betts. When she called Betts, Ballinger asked him where he and Sturgis were because she wanted a ride. All that Betts would tell her, however, was that he and Sturgis were in Wichita.
Finally, Ballinger testified she went back to the police station on January 11, 2013, because the police wanted her to look at some pictures of possible suspects. She did not identify anyone in the pictures as a suspect.
Rebecca Sutton, the area supervisor for Casey's, testified that after the theft on January 10, 2013, she came to the store and totaled the amount of money that was missing. She determined $777.94 had been taken. She also testified that four cartons of cigarettes had been stolen. Sutton later provided the police with surveillance camera video footage from the January 10, 2013, armed theft. This video was admitted into evidence at trial.
Officer Brian Norris of the Derby Police Department was dispatched to an address in Derby on January 16, 2013, 6 days after the armed theft at Casey's. It was Brown's house. Officer Norris arrived at the scene at 1:03 a.m. and discovered an individual named Aaron Lonely had taken his own life inside the house. Officer Norris described the scene as “extremely chaotic.” After determining there was nothing that could be done for Aaron medically, Officer Norris talked to Ballinger and Sturgis. According to Officer Norris, Sturgis said that he could not believe this type of crime was occurring in Derby. When Officer Norris asked what Sturgis meant, Sturgis noted the suicide and the armed theft at Casey's. Officer Norris also testified that, while he was trying to get Sturgis to fill out a witness statement, the two of them walked into Sturgis' room. At that point, Sturgis asked Officer Norris whether the police had any suspects in the Casey's armed theft. Officer Norris said no. After this question, Sturgis immediately told Officer Norris that he was in Wichita at the time of the Casey's armed theft. Officer Norris thought Sturgis' comments were strangely out of place given the circumstances.
Officer Norris also testified that when he first made contact with Sturgis on January 16, 2013, Sturgis was wearing white tennis shoes, black sweatpants, and a black shirt. But after Officer Norris arrived, Sturgis immediately went into his room and changed into a white t-shirt and shorts. Officer Norris testified on direct examination that he saw a black puffy coat while he was in Sturgis' room. During cross-examination, Officer Norris acknowledged an affirmative notation in a police report prepared shortly after the suicide incident that he did not notice a black coat in the house. At trial, Officer Norris insisted that he remembered observing a black coat but could not explain why the report contained a contradictory statement.
The next witness to testify was Chris Blanchard. Blanchard testified that Sturgis and Ballinger occasionally stayed with him at his house. On July 17, 2013, Sturgis and Ballinger each took some of their property from Blanchard's house but left remnants. Blanchard believed Sturgis and Ballinger were splitting ways. On July 18, 2013, Blanchard called the police to request they come and pick up some of the items left at his house by Ballinger and Sturgis. Blanchard explained that he called the police because a gun and some drug paraphernalia were left behind and he did not want anything left in his house that would get him in trouble. Blanchard did not inform the police or provide any testimony at trial regarding the identity of the person who owned the gun and drug paraphernalia. Blanchard did testify, however, that he knew Ballinger in January 2013 and he knew she was using drugs at the time.
Officer Nelson also testified. He spoke with Ballinger in July 2013 about the Casey's armed theft that occurred on January 10, 2013. At this meeting, Ballinger told Officer Nelson that it had actually been Sturgis who had stolen the money and cigarettes from Casey's. Ballinger told Officer Nelson that she did not tell the police earlier because she feared for her safety and the safety of her family.
After presenting the witnesses and evidence set forth above, the State rested its case. Sturgis moved for judgment of acquittal, arguing the State had failed to make a prima facie case that Sturgis committed any crime. The district court denied the motion.
The defense put on several witnesses. Adolph Lonely, Sturgis' uncle by marriage, was the first to testify. Adolph testified that on January 10, 2013—the night of the Casey's armed theft—Sturgis came to Adolph's house around 6 or 6:30 p.m. Several other people were also there. Adolph testified the group was drinking and watching movies. Adolph noted that Sturgis and a man named Travis Ferris went to the store and came back at some point that night, but he did not recall what time. Adolph also was not sure what time Sturgis actually left his house for the night but said it was “pretty late.”
Adolph's wife, Crystal Lonely, clarified that their house was located on Fabrique Street in Wichita, Kansas. She testified she did not remember exact details from the night of January 10, 2013. Crystal did, however, say that Sturgis was at her house in Wichita when the Casey's in Derby was robbed. Crystal also testified that she did not remember whether Sturgis left the house at any time that night.
Amy Jaso, Adolph's sister-in-law, lived with Adolph and Crystal in January 2013. She testified that on January 10, 2013, Sturgis arrived at Crystal's house on Fabrique midmorning and was there all day. Jaso remembered that Sturgis and Ferris left the house around 7 or 8 p.m. to buy cigarettes and were gone for 8 to 10 minutes. Jaso did not recall when Sturgis left the house for the night but believed that her fiancé gave Sturgis a ride home. Jaso said it took approximately 18 to 25 minutes to get from the house on Fabrique to Derby.
Brown was called next by the defense. During her testimony, Brown confirmed Sturgis and Ballinger were living with her in January 2013. Brown testified that she believed she took Ballinger to work at Casey's on January 10, 2013. Brown said she thought Ballinger usually went to work at about 9 a.m. After dropping Ballinger off at work on January 10, 2013, Brown said she dropped Sturgis off at Adolph's house. Brown admitted that she did not like Sturgis spending time at Adolph's house. In an e-mail to the police, she had called it a “party house” and noted that drug use occurred at the house.
On the night of January 10, 2013, Brown testified Ballinger's best friend called to ask her where Sturgis was because Ballinger was looking for him. Brown told the friend that Sturgis was with Adolph. She thought this call came at about 11 p.m. After she received this phone call, Brown called Adolph's phone and spoke to Sturgis. Finally, when asked if she knew whether Sturgis owned a black coat, Brown replied that he did not.
Sturgis chose to testify in his own defense. Sturgis testified he rode with Brown on January 10, 2013, when Brown drove Ballinger to work and then went to Wichita to spend the day with Adolph and his family. Sturgis testified he arrived at Adolph's house in the early afternoon after lunch time. Sturgis said he and Ferris left for about 15 minutes to purchase cigarettes and then went back to Adolph's house. Sturgis testified he came home to Brown's house between 12 and 1 a.m. He denied ever joking with Ballinger about taking money from Casey's. Sturgis also specifically denied entering Casey's with a gun on the night of January 10, 2013.
Sturgis also was questioned about Aaron's death, which occurred 6 days after the armed theft at Casey's. Sturgis testified Officer Norris was the first to bring up the Casey's armed theft by commenting to Ballinger that he was having a stressful week. Sturgis denied asking about any suspects in the theft but admitted to making a comment about crime in a small town. Sturgis also admitted to changing clothes when the officers arrived at the house. Sturgis said he initially was wearing a tank top and changed into a long-sleeve shirt to cover up his tattoos. He denied changing his pants and also denied wearing any black clothing. Finally, Sturgis denied leaving any of his property at Blanchard's house in July 2013.
After her initial testimony, Jaso was recalled as a witness by the defense. This time, she testified about a phone conversation she overheard. She stated that in early January 2013, she heard Ballinger say to someone on the phone, “So Sheldon [Herman] and I went to the bar in Derby and found a guy that looks just like—identical to [Herman].” After hearing these words, Jaso said she then heard Ballinger say, “Someone's coming. We're at his people's house now so I'll call you back later.” Jaso testified that Herman and Sturgis resembled each other. She said they were both balding and they both had tattoos. She noted, however, that Sturgis' hair was not balding nearly as much as Sheldon's hair.
After Jaso testified for the second time, Ballinger was recalled as a witness by the State. She said she had known Herman for 8 years. She denied ever having a phone conversation in which she discussed Herman looking like anyone. She also denied ever going to a bar with Herman and testified she did not think Sturgis and Herman looked similar to one another. Finally, Ballinger testified that Jaso told her that Jaso believed Sturgis was involved in the armed theft at Casey's. Ballinger said Jaso believed this because a witness said that the perpetrator got into a blue Mustang after leaving Casey's. Ballinger explained that Betts drove a blue Mustang.
After Ballinger testified again, Sturgis took the stand for a second time. He admitted to knowing Betts and stated that Betts died in April 2013. Sturgis also testified that he and Betts had a falling out before Christmas 2012 and no longer hung out afterwards. He said that after their falling out, he was never in Betts' blue Mustang.
Jaso was recalled as a witness for the third time. She testified she did not know Betts nor did she know anyone who drove a blue Mustang. Jaso denied having any conversation with Ballinger about Sturgis being involved in the January 10, 2013, armed theft at Casey's.
Lieutenant Jimmy Queen of the Derby Police Department, who had previously testified during the State's case-in-chief, was then called as a rebuttal witness by the State. Lieutenant Queen testified that on February 2, 2013, Sturgis provided a statement contained in a police report in which Sturgis described having contact with Betts. In response to Lieutenant Queen's testimony, the defense recalled Brown. Brown testified that she called the police on February 2, 2013, to complain that Betts had come to her house uninvited and threatened her, Ballinger, and Sturgis. Brown also said Sturgis and Betts stopped being friends sometime after Aaron took his life on January 16, 2013.
Sturgis was recalled again as the final witness at trial. He testified that after Aaron took his life, Betts came by Brown's house periodically to help Brown. Sturgis said Betts and Brown remained friends after Sturgis and Betts had their falling out. During cross-examination, Sturgis admitted to having contact with Betts on February 2, 2013. Sturgis also acknowledged his February 2, 2013, statement to the police that in the week or two prior to February 2, 2013, he had been slowly distancing himself from Betts. Sturgis testified that Betts would still call him from time to time in January 2013.
When the district court read the jury its instructions, it also provided some stipulated facts to the jury. The parties stipulated that within 10 years of January 10, 2013, Sturgis had been convicted in another jurisdiction of a crime substantially the same as a nonperson felony in Kansas and that Sturgis was in possession of a firearm at the time of the prior crime. The jury found Sturgis guilty of both counts against him. Based on a criminal history score of “B,” Sturgis was sentenced to a controlling prison sentence of 27 months.
Analysis
1. Sufficiency of the evidence
Sturgis contends on appeal that the evidence presented at trial was insufficient to convict him of the crimes with which he was charged. When reviewing the sufficiency of the evidence following a conviction in a criminal case, the appellate court looks at all the evidence in a light most favorable to the prosecution and determines 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). This standard applies to both jury trials and bench trials and this court will not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. A conviction may be based entirely on circumstantial evidence and the reasonable inferences deducible from that evidence. State v. Lewis, 301 Kan. 349, 371, 344 P.3d 928 (2015).
Sturgis presented two motions for judgment of acquittal to the district court during the trial. The first motion was presented after the close of the State's evidence and the second was presented after the close of all evidence. On appeal, Sturgis argues this court must separately analyze each of the district court's decisions to deny his motions for judgment of acquittal. Specifically, he asserts we first must review the sufficiency of the evidence presented in the State's case-in-chief without regard to any of the evidence presented by the defense. He contends that only if we find this evidence sufficient to support a conviction should we go on to analyze all of the evidence presented at trial. But Sturgis is not entitled to this bifurcated analysis.
In State v. Blue, 225 Kan. 576, 578, 592 P.2d 897 (1979), the Kansas Supreme Court held that “a defendant who presents evidence in his or her behalf, after the trial court has overruled a motion for acquittal at the close of the prosecution's case, waives any error in the denial of the motion.” The Blue court also held that if the motion for judgment of acquittal is renewed at the end of the trial, then the district court should consider all of the evidence presented at trial in ruling on the motion. 225 Kan. at 578. Here, Sturgis called several witnesses in his defense whose testimony directly challenged the State's version of events. As a result, Sturgis waived his right to challenge the sufficiency of the evidence without taking into account the evidence presented during his defense. In analyzing whether the evidence in this case was sufficient to support Sturgis' convictions in this case, we must consider all of the evidence presented at trial.
Having resolved the issue of bifurcation, we turn to the underlying merits of Sturgis' claim of insufficient evidence. In his brief, Sturgis acknowledges Ballinger's testimony that she witnessed Sturgis commit both of the crimes of conviction. Nevertheless, Sturgis claims Ballinger's testimony was so unreliable that no rational factfinder could have relied on it to find Sturgis guilty beyond a reasonable doubt.
Admittedly, the Kansas Supreme Court has, at least once, determined that the testimony of an eyewitness was not sufficiently credible to sustain a conviction. In State v. Matlock, 233 Kan. 1, 1–2, 660 P.2d 945 (1983), the defendant was convicted of raping his adopted stepdaughter. The only witness called by the State was the complainant. The defendant and several other defense witnesses contradicted the complainant's accusation. On appeal, the Kansas Supreme Court found that “the uncorroborated testimony of the prosecutrix in this case was unbelievable to the extent that it was not sufficient to sustain the conviction of the defendant for rape.” 223 Kan. at 4. As support, the court noted several uncontroverted facts that it believed cast overwhelming doubt on the facts to which the complainant testified. 223 Kan. at 4–5.
Over 25 years after Matlock was decided, the Kansas Supreme Court noted in State v. Brinklow, 288 Kan. 39, 53, 200 P.3d 1225 (2009), that the analysis in Matlock was “perhaps the only case of its kind in this state where the Supreme Court directly weighed the evidence and assessed the credibility of the prosecutrix to reverse a conviction for rape.” The Brinklow court went on to state that the facts presented in the case under review at that time did “not call for such aberrant review.” 288 Kan. at 53.
Just as in Brinklow, there is nothing in this case to suggest that Ballinger's testimony was so unbelievable that it would be appropriate for this court to reassess her credibility or reweigh the evidence presented at trial. Ballinger unequivocally testified that Sturgis was the person who committed the armed theft at Casey's on January 10, 2013. On appeal, Sturgis makes several arguments attacking Ballinger's credibility. He argues, without elaboration, that Ballinger testified dishonestly about her methamphetamine addiction. But Ballinger testified that she was not using methamphetamine on January 10, 2013. The fact that there may have been competing testimony alleging Ballinger was using methamphetamine on January 10, 2013, does not cast doubt on the entirety of Ballinger's testimony; the jury was free to believe or disbelieve all of the testimony presented on this issue. Sturgis also argues that the timing of Ballinger's accusation is suspicious because she waited until after their relationship ended before telling the police that he was the person who committed the armed theft at Casey's. But, again, assessing Ballinger's credibility was the proper function of the jury in this case. Finally, Sturgis attempts to cast doubt on Ballinger's credibility by arguing that her demeanor during the armed theft and her “seemingly[ ] conscious decision not to activate a silent alarm” demonstrated that she staged the armed theft with a known accomplice. Even assuming this were true, the “ ‘uncorroborated testimony of an accomplice is sufficient to sustain a conviction.’ “ State v. Lopez, 299 Kan. 324, 330–31, 323 P.3d 1260 (2014).
Although Ballinger's testimony alone would be sufficient to support a conviction, we note that her testimony was corroborated by other evidence. Officer Norris testified that he saw a black puffy coat in Sturgis' room while taking Sturgis' statement about Aaron's death. Ballinger testified that the perpetrator was wearing a black puffy coat. The video admitted at trial shows the perpetrator of the crime pulling down his bandanna, allowing Ballinger to see his face. This is consistent with Ballinger's testimony and tends to increase the likelihood that Ballinger could positively identify the perpetrator. Additionally, the getaway car was reported to be a blue Mustang. Betts drove a blue Mustang; Ballinger testified that she knew Sturgis was with Betts on the night of January 10, 2013, and Betts drove a blue Mustang. The fact that several defense witnesses testified that Sturgis was in Wichita at the time of the armed theft at Casey's on January 10, 2013, is not dispositive for purposes of an analysis regarding sufficiency of the evidence. When reviewing a claim of insufficient evidence, we are specifically prohibited from reweighing evidence, resolving conflicts in the evidence, or passing on the credibility of witnesses. Lewis, 301 Kan. at 371. Considering the evidence set forth above in a light most favorable to the State, we find a rational factfinder could have found the defendant guilty beyond a reasonable doubt. As such, there was sufficient evidence to convict Sturgis of both crimes.
2. Prosecutorial misconduct
Sturgis next argues that the State engaged in prosecutorial misconduct during its closing argument by improperly commenting on his credibility, by making improper comments regarding the decision he made to exercise his constitutional right to testify, by misstating the evidence, and by referencing allegations of drug activity at his uncle's house. Although Sturgis only objected to one of these statements during closing argument, a claim of prosecutorial misconduct based on comments made during closing argument may be reviewed on appeal even when a contemporaneous objection was not made at the district court level. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012).
Appellate review of misconduct involving improper comments to the jury requires a two-step analysis. First, the district court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If the prosecutor's comments were outside this latitude, the appellate court must determine whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Roeder, 300 Kan. 901, 932–33, 336 P.3d 831 (2014), cert. denied 135 S.Ct. 2316 (2015). Having set forth the proper standard of review, we address each of Sturgis' prosecutorial misconduct claims in turn.
a. Credibility
Sturgis alleges the prosecutor improperly commented on his credibility as a witness. First, he cites the following portion of the State's closing argument in support of this claim:
“Ladies and gentlemen, I'm not going to ask you to do the job of the Derby Police Department. You are not investigators in this case. You are not the people charged with going out and interviewing people. Instruction one in your jury packet says that it is your duty as jurors to consider and follow all of the instructions. It is your duty to determine the facts in this case as you find them. You've heard evidence. You are the ones who decide what the facts are. You decide what is real and what isn't.
“Ladies and gentlemen, the most critical instruction that you have in your packet is going to be instruction number five, I'm sorry. It's instruction number six. It tells you that you are the only ones in this courtroom who can determine the weight and the credit to be given to each and every piece of evidence, each and every bit of testimony. You also have the right to use your common knowledge, your common experience. You do not divorce that simply because you walk into that jury room and start your deliberations. Your experiences go with you. Use them. Apply them to these facts and determine what makes sense.
“What makes sense, ladies and gentlemen? You get to determine the credibility of each witness who testified. The defendant is presumed innocent. He is not presumed credible, ladies and gentlemen. You have to weigh his testimony just as critically as you weigh everyone else who testified in this case. You have to determine the credibility of the alibi witnesses as well.” (Emphasis added.)
Sturgis argues the comment set forth in italics above was outside the wide latitude that the prosecutor is allowed in discussing the evidence because the comment was intended to convey to the jury that Sturgis was lying.
A prosecutor may not offer his personal opinion as to the credibility of a witness. State v. Armstrong, 299 Kan. 405, 427, 324 P.3d 1052 (2014). Directly accusing a defendant of lying is outside the wide latitude afforded to prosecutors in closing argument. See State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000). Indirectly accusing a defendant of lying also is outside the wide latitude afforded to prosecutors. See State v. Elnicki, 279 Kan. 47, 62, 105 P.3d 1222 (2005) (prosecutor may not use words such as “ ‘yarn,’ ‘fairy tale,’ ‘fabrication,’ ‘tall tale,’ and ‘spin’ “ to disguise allegation that defendant lied).
Nevertheless, a prosecutor is free to craft an argument that includes reasonable inferences to be drawn from the evidence. See Pabst, 268 Kan. at 507. That latitude would include explaining to the jury what it should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses. See State v. King, 288 Kan. 333, 352–53, 204 P.3d 585 (2009) (prosecutor's argument that witness did not have “ ‘motive’ “ to be untruthful was a fair argument based on the evidence; prosecutor may comment on “witness' motivations to be untruthful”); see also Armstrong, 299 Kan. at 429 (statement about defendant's “ ‘denial, half-truths, truths, other stories' “ was fair comment on evidence because defendant gave six inconsistent versions of the crime); State v. Todd, 299 Kan. 263, 285, 323 P.3d 829, cert. denied 135 S.Ct. 460 (2014) (not misconduct to state that witness was not credible because statement was made in context of arguing witness was biased because of familial relationship to defendant and had criminal record of crimes of dishonesty); State v. Huerta–Alvarez, 291 Kan. 247, 262, 243 P.3d 326 (2010) (prosecutor's remarks in closing regarding victim's credibility “were generally in the nature of reviewing what [the witness] said, asking the jury to assess the credibility of her statements, and querying the jury why she would not have made up a more convenient story if in fact she had fabricated the story at all”); State v. McReynolds, 288 Kan. 318, 325–26, 202 P.3d 658 (2009) (“[w]hen a defendant has told one story during interrogation and a completely different story at trial, it would be difficult for a prosecutor to comment on the evidence without suggesting that untruths existed,” and therefore it is proper for a prosecutor explain to the jury “ ‘what it should look for in assessing witness credibility’ ”).
In this case, the prosecutor did not directly or indirectly accuse Sturgis of lying. The evidence at trial presented the jury with two stories that were in direct conflict with each other. Considering the comment in the context of the entire argument presented by the prosecutor and the conflicting evidence presented at trial, it appears the prosecutor simply was making clear that it was the jury's job to assess the credibility of all the witnesses at trial, including Sturgis. As noted above, explaining to the jury what it should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses, is within the wide latitude afforded to a prosecutor in discussing the evidence. See King, 288 Kan. at 352.
Next, Sturgis argues the prosecutor implied that he was lying by stating that he repeatedly got back on the witness stand to “ ‘explain himself.’ “ He cites the following portion of the State's closing argument in support of this claim, which was presented immediately after the excerpt set forth above:
“Now I want to talk a bit about the defendant's testimony. You've heard him. He comes up here and he explains himself. Some other bit of information comes up and he has to come up here again and explain himself. Another bit of information comes up and he has to come up here again and he has an explanation for that as well.” (Emphasis added.)
As he did with regard to his first claim, Sturgis argues the comments set forth in italics above were outside the wide latitude that the prosecutor is allowed in discussing the evidence because the prosecutor intended to convey to the jury that Sturgis was lying. But we fail to see how these comments either directly or indirectly could be construed as a comment on the veracity of Sturgis' testimony during trial. Again, the comments appear simply to provide an explanation to the jury what it should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses. Such comments are within the latitude afforded to a prosecutor in discussing the evidence during closing argument. See King, 288 Kan. at 352. Accordingly, there is no need to move on the second step of the prosecutorial misconduct analysis.
b. Right to testify
In his second claim of prosecutorial misconduct, Sturgis argues the prosecutor adversely commented on his constitutional right to testify. In support of this argument, he cites again to the following portion of the State's closing argument:
“Now I want to talk a bit about the defendant's testimony. You've heard him. He comes up here and he explains himself. Some other bit of information comes up and he has to come up here again and explain himself. Another bit of information comes up and he has to come up here again and he has an explanation for that as well.” (Emphasis added.)
A prosecutor may not make disparaging comments about a defendant's decision to exercise his or her right to testify at a jury trial. State v. Killings, 301 Kan. 214, 229, 340 P.3d 1186 (2015). But the comments here do not appear to relate in any way to Sturgis' decision to provide testimony to the jury; instead, the comments appear to relate to factors the prosecutor believes the jury should consider in assessing witness credibility. The prosecutor began by emphasizing the role of the jurors as the finders of fact and by directing them to their jury instructions. The prosecutor then pointed out that Sturgis' credibility was just as much at issue as every other witness, and that he was not entitled to any special presumption of truthfulness. The prosecutor went on to talk about Sturgis' testimony. First, the prosecutor noted that Sturgis was recalled back to the witness stand on more than one occasion. This statement is true; the record reflects that Sturgis testified three times. After Sturgis testified the first time, the State recalled a witness to refute portions of Sturgis' testimony. Sturgis testified a second time in order to rebut testimony given by the witness who was recalled. The State then recalled a second witness to refute portions of Sturgis' rebuttal testimony. Sturgis testified a third time in order to rebut testimony given by the second witness who was recalled.
Given these facts, we find the prosecutor's comment about Sturgis testifying multiple times to explain or refute intervening witness testimony comes within the wide latitude allowed in discussing the evidence. Taken in context, we cannot construe the comment as a disparaging remark about Sturgis' decision to exercise his or her right to testify at a jury trial. Killings, 301 Kan. at 229. Instead, the prosecutor appears to be asking the jury to consider Sturgis' evolving explanation in weighing his credibility. Accordingly, there is no need to move on to the second step of the prosecutorial misconduct analysis.
c. Misstating evidence
Next, Sturgis argues that the prosecutor committed misconduct by misstating the evidence on two separate occasions during closing argument. Misstating the evidence is a serious violation and ordinarily satisfies the first prong of the prosecutorial misconduct test, regardless of whether the error was deliberate or inadvertent. State v. Bridges, 297 Kan. 989, 1014, 306 P.3d 244 (2013).
The first instance of misstated evidence cited by Sturgis was when the prosecutor said the following in closing argument:
“The defendant also stated, one of the many times he testified, that he never had any contact with Ronald Betts after January 10th or, I'm sorry, after Christmas time of 2012. Well, then he comes back later and has an explanation for that. Well, phone calls aren't contact. Him coming over to my house isn't contact. Seeing him at the bar isn't contact. That's not what he testified to first .”
At trial, Sturgis testified that before Christmas of 2012, he and Betts had a “falling out” and that they parted ways on “not such good terms.” Sturgis also said that he and Betts “no longer hung out.” Sturgis argues that “not hanging out” with Betts is entirely different than “not having any contact” with Betts; thus, Sturgis believes the prosecutor misstated the evidence to his detriment by commenting during closing argument that Sturgis testified that he did “not have contact” with Betts after Christmas of 2012.
As set forth in the preceding section, a prosecutor may craft closing arguments that include reasonable inferences based on the evidence. Armstrong, 299 Kan. at 427. When Sturgis initially testified at trial about his relationship with Betts, he did not specifically state that he “had no contact” with Betts. Sturgis did, however, state that their relationship ended on “not such good terms,” and that after Christmas, they “no longer hung out.” He also specifically testified that he was never in Betts' blue Mustang after their falling out. Thus, regardless of Sturgis' perceived difference between “having contact” and “hanging out” with another individual, it would be reasonable for the jury to infer from Sturgis' testimony that Sturgis did not have contact with Betts after Christmas of 2012. For this reason, we find the prosecutor did not misstate the evidence but, instead, merely was asking the jury to make a reasonable inference based on Sturgis' testimony.
Sturgis argues the prosecutor misstated the evidence a second time during closing argument by saying Sturgis testified he briefly left his uncle's house on the night of the theft to go to a Presto gas station, rather than a Phillips 66 gas station, to get cigarettes. The prosecutor stated: “[Sturgis] left with [Ferris] to go to the Presto gas station. That's the statement that he made, that he went to the Presto gas station. He didn't go to a Phillips 66. He said he went to Presto.”
Defense counsel objected on grounds that the prosecutor misstated the evidence, explaining, “I believe the statement was Presto, Phillips 66.” The district court had the attorneys approach for a bench conference. Although no ruling on the objection appears in the record, the prosecutor proceeded with the rest of her rebuttal remarks after the bench conference.
It appears from the record that the testimony to which the prosecutor was referring when making this statement was when Sturgis testified that, at one point during the evening when he was at his uncle's house, he and another individual “went down the street to the Phillips 66 that's located right down the street and got cigarettes.” Given Sturgis' testimony that he went to Phillips 66 and the prosecutor's statement saying Sturgis testified he went to a Presto, we conclude the prosecutor misstated the evidence. Because the prosecutor misstated the evidence, we move on to the next step in the prosecutorial misconduct analysis as it pertains to this misstatement.
In the second step of the two-step analysis, the appellate court considers three factors: (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078 (2014). None of these three factors is individually controlling. But before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967), have been met. Williams, 299 Kan. at 54041. Under Chapman, a constitutional error can be deemed harmless only if “the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). Under the statutory harmless error standard, the court must determine whether “ ‘there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record.’ “ Williams, 299 Kan. at 541.
In considering whether the prosecutor's conduct was gross or flagrant, we look to whether the comments were repeated, emphasized, planned, or constituted a violation of well-established or unequivocal rules. Bridges, 297 Kan. at 1015–16. In this case, the prosecutor's misstatement was a one-time isolated incident. And immediately after the prosecutor made the statement, defense counsel objected on grounds that the prosecutor misstated the evidence, explaining, “I believe the statement was Presto, Phillips 66.” As such, we find the prosecutor's conduct was not gross or flagrant.
In determining whether ill will exists, appellate courts may consider whether conduct was deliberate or done in apparent indifference to a court's ruling. Bridges, 297 Kan. at 1016. There is nothing in the record here to suggest that the prosecutor deliberately misstated Sturgis' testimony. In fact, the record reflects the prosecutor simply made an unintentional mistake. In addition to Sturgis' testimony about going to Phillips 66 to buy cigarettes, there was also testimony at trial presented from Brown, who testified she was the person who typically bought Sturgis cigarettes and that he usually got his cigarettes “down at Presto.” Moreover, and as revealed by the substance of defense counsel's objection to the prosecutor's comment on this issue, Sturgis' own counsel remembered the testimony given by Sturgis as him going to get cigarettes at “Presto, Phillips 66.” Although perhaps the prosecutor obviously believed them to be different entities, the evidence in the record also supports a reasonable inference that the Presto gas station and the Phillips 66 gas station were one and the same: a Presto gas station selling the Phillips 66 brand of gasoline. Considering the prosecutor's misstatement regarding Sturgis' testimony in the context of all the evidence presented and arguments made by counsel during this trial, we find no reasonable probability that the prosecutor's misstatement affected the outcome of the trial.
Under the Chapman standard for harmless constitutional error, we hold the State has met its burden of proving beyond a reasonable doubt that the prosecutor's misstatement of Sturgis' testimony regarding Presto and Phillips 66 did not affect the outcome of the trial in light of the entire record and there is no reasonable possibility that the error contributed to the verdict. See Ward, 292 Kan. 541, Syl. ¶ 6. Given this holding, we need not determine whether the State has also met its burden of showing harmless error under the lower threshold articulated in K.S.A. 60–261. See State v. Ochs, 297 Kan. 1094, 1102–03, 306 P.3d 294 (2013).
d. Drug use
Finally, Sturgis argues the following statement by the prosecutor was improper:
“Furthermore, Elda Brown considered the Lonely house to be a party house. She stated she believed drug use occurred there. Now, by no means am I saying that [Sturgis] used drugs. By no means am I saying that certain other people used drugs. But that's Elda Brown's impression of where [Sturgis] would go, the people he was hanging around with. Consider that, ladies and gentlemen.”
Sturgis acknowledges that the statement accurately reflected Brown's testimony but argues that comments made by the prosecutor were improper because the comments implied that he was a drug user when there was no evidence presented at trial to support such a conclusion. We agree with Sturgis that the comments were improper. “Prosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law .” State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006).
Having found the comments improper, we move to the second step of the prosecutorial misconduct analysis to determine whether Sturgis was denied a fair trial based on the improper comments. To determine whether Sturgis was denied a fair trial, we consider whether the misconduct was gross and flagrant, whether the comments show ill will on the part of the prosecutor, and whether the evidence was so overwhelming that the misconduct would likely have had little weight in the minds of jurors. Williams, 299 Kan. at 540.
In considering whether the prosecutor's conduct was gross or flagrant, we look to whether the comments were repeated, emphasized, planned, or constituted a violation of well-established or unequivocal rules. In this case, the prosecutor did not repeat or unduly emphasize Brown's opinion that drugs were being used at the Lonely house. And, although Sturgis insists the prosecutor's reference to Brown's opinion during closing argument deprived him of a fair trial, we note that Sturgis did not object at trial to the admission of that evidence at trial. Although not repeated or emphasized, we do find the solitary reference to Brown's opinion about drugs being used at the Lonely house violates the well-established rule prohibiting prosecutors from making comments that “distract the jury from its duty to make decisions based on the evidence and the controlling law.” See Baker, 281 Kan. at 1016. If, as the prosecutor argued, the State truly was not suggesting that any of the witnesses used drugs, it is difficult to understand the relevance of Brown's impression that the people living at the Lonely house used drugs. Neither the evidence at trial nor the prosecutor's closing argument alleged any specific instances of drug use. And the State never alleged that drugs affected any of the witnesses' memories or motivations in testifying. Simply put, the issue of gross and flagrant conduct is a close call.
In determining whether ill will exists, appellate courts may consider whether conduct was deliberate or done in apparent indifference to a court's ruling. Bridges, 297 Kan. at 1016. Sturgis alleges ill will is demonstrated by the fact that the prosecutor's allegations about drug activity at his uncle's house could not have served any other purpose than to get the jury to believe Sturgis was a drug user and thus inflame the passions and prejudices of the jury. The State counters that the comments were not a deliberate attempt to get the jury to believe Sturgis was a drug user but, instead, were intended only to restate Brown's testimony as an alternative method for the jury to assess witness credibility. In support of its position, the State points out that immediately after referencing Brown's opinion that she believed drugs were being used at the Lonely house, the State specifically advised the jury that it was not alleging Sturgis used drugs but instead was asking the jury to consider Brown's impression of the house and the people with whom Sturgis was associating when he was over there. On the one hand, the rhetorical technique used by the prosecutor in closing argument here suggests that the prosecutor deliberately decided to restate Brown's testimony about drug activity at the Lonely house in order to imply that Sturgis—and the witnesses testifying on his behalf—all used drugs. On the other hand, Brown's opinion about drug activity at the Lonely house was admitted into evidence without objection and the State was entitled to comment on that evidence in order to provide the jury with an alternative method to assess witness credibility. Like the issue of gross and flagrant conduct, the issue of ill will is a close call.
Given our analysis regarding gross and flagrant conduct and ill will presents inconclusive results, we move on to the third factor to determine whether the State has proved beyond a reasonable doubt that that the prosecutor's comments at issue here did not affect the outcome of the trial in light of the entire record. We find the State has successfully carried its burden. After reviewing the entire record, we conclude that the evidence was such that the misconduct likely would have had little weight in the minds of the jurors. The reference to Brown's opinion was both isolated and brief. The State provided a plausible explanation to support the assertion that the prosecutor intended only to restate Brown's testimony as an alternative method for the jury to assess witness credibility. The prosecutor presented both direct and circumstantial evidence at trial to support Sturgis' convictions and it is unlikely the isolated comment, which was not part of an obvious pattern of misconduct by the prosecution, would have affected the jury's determination. For all of these reasons, we are convinced beyond a reasonable doubt that the prosecutor's singular reference to Brown's opinion about drugs at the Lonely house made no difference in the outcome at trial.
3. Criminal history
Sturgis challenges the classification of his 2007 Michigan conviction as a person offense for purposes of calculating his criminal history score. The presentence investigation (PSI) report prepared in this case included in Sturgis' criminal history a 2007 Michigan conviction identified as “Home Invasion; 3rd Degree.” The individual who prepared the PSI report classified this conviction as an adult person felony. Based on this classification and other information in the PSI report, the district court set Sturgis' criminal history score at “B” and sentenced him to a controlling prison sentence of 27 months. On appeal, Sturgis argues the district court should have classified his 2007 Michigan conviction for third-degree home invasion as a nonperson offense instead of a person offense.
In response, the State argues that by failing to challenge his criminal history in the district court, Sturgis effectively stipulated that the criminal act for which he was convicted in Michigan was comparable to the type of burglary that qualifies in Kansas as a person felony. The State also argues that Sturgis should not be able to raise this argument for the first time on appeal. Finally, the State argues that the Michigan and Kansas statutes are comparable as a matter of law, so the district court did not err in classifying the Michigan crime as a person felony.
Although Sturgis did not challenge the person classification of the 2007 Michigan conviction for third-degree home invasion in the district court, he may do so for the first time on appeal under State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015). In Dickey, our Supreme Court held that “a legal challenge to the classification of a prior adjudication for purposes of lowering [a defendant's] criminal history score[ ]can be raised for the first time on appeal pursuant to K.S.A. 22–3504(1).” 301 Kan. at 1034.
The State next asserts that Sturgis' failure to object in the district court to his criminal history score constitutes a stipulation to any necessary factual findings, which in turn relieved the State of its burden to prove by a preponderance of the evidence any facts of the Michigan home invasion. But our Supreme Court was not persuaded by a similar argument in Dickey when the State claimed that the defendant's failure to object to the person classification of his 1992 burglary adjudication relieved the State of its burden to prove that it involved a dwelling. See Dickey, 301 Kan. at 1033–34. Based on Dickey, we necessarily conclude Sturgis' argument raises a legal issue of whether the district court erred by making factual determinations without using permissible resources; thus, we are not persuaded by the State's argument that Sturgis is barred from raising this issue on appeal because he stipulated to his criminal history score.
Given the absence of any procedural bar, we turn to the merits of Sturgis' claim that the district court erred in classifying his 2007 Michigan conviction as a person offense instead of a nonperson offense for purposes of calculating his criminal history score. Whether a prior conviction should be classified as a person or nonperson offense involves the interpretation of the Kansas Sentencing Guidelines Act (KSGA). Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Keel, 302 Kan. ––––, ––––, 357 P.3d 251, 259 (2015). Recently, the Kansas Supreme Court made clear that a prior crime's classification as person or nonperson is determined based on the classification in effect for the comparable Kansas offense at the time the current crime of conviction was committed. 357 P.3d at 269.
We begin our analysis with Mich. Comp. Laws § 750.110a(4) (2001), the subsection of the Michigan statute governing the crime of home invasion that forms the basis for Sturgis' prior conviction. In 2007, this subsection of the statute provided, in relevant part:
“(4) A person is guilty of home invasion in the third degree if the person does either of the following:
(a) Breaks and enters a dwelling with intent to commit a misdemeanor in the dwelling, enters a dwelling without permission with intent to commit a misdemeanor in the dwelling, or breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor.
(b) Breaks and enters a dwelling or enters a dwelling without permission and, at any time while the person is entering, present in, or exiting the dwelling, violates any of the following ordered to protect a named person or persons:
(i) A probation term or condition.
(ii) A parole term or condition.
(iii) A personal protection order term or condition.
(iv) A bond or bail condition or any condition of pretrial release.” Mich. Comp. Laws § 750.110a.
Also relevant to our discussion is K.S.A.2012 Supp. 21–5807, the Kansas burglary statute, which at the time Sturgis was convicted in this case of theft and criminal possession of a firearm provided:
“(a) Burglary is, without authority, entering into or remaining within any:
(1) Dwelling, with intent to commit a felony, theft or sexually motivated crime therein;
(2) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexually motivated crime therein; or
(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft or sexually motivated crime therein.”
Burglary as defined in K.S.A.2012 Supp. 21–5807(a)(1) is a person felony, but burglary as defined in K.S.A.2012 Supp. 21–5807(a)(2) or (a)(3) is a nonperson felony. K.S.A.2012 Supp. 21–5807(c)(1)(A)–(C).
Finally, K.S.A.2012 Supp. 21–6811(e) also is relevant. It states:
“(e) 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. Convictions or adjudications occurring within the federal system, other state systems, the District of Columbia, foreign, tribal or military courts are considered out-of-state convictions or adjudications. The facts required to classify out-of-state adult convictions and juvenile adjudications shall be established by the state by a preponderance of the evidence.” K.S.A.2012 Supp. 21–6811(e).
Sturgis' argument appears to be based upon K.S.A.2012 Supp. 21–6811(e). The Michigan home invasion statute allows for a conviction based on intent to commit, or committing, a misdemeanor when entering into or remaining within a dwelling whereas the Kansas burglary statute does not allow a conviction unless the intent is to commit a felony, theft, or sexually motivated crime. Sturgis argues that because his Michigan conviction could have occurred as the result of him entering or remaining in a dwelling with the intent to commit a nontheft misdemeanor that was not sexually motivated—facts that would not constitute burglary in Kansas—the Michigan conviction was not comparable to K.S.A.2012 Supp. 21–5807 and should have been treated as a nonperson felony.
Citing to Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Sturgis claims the district court erred in going beyond the language of the Michigan home invasion statute to make factual findings without requiring the State to prove those facts beyond a reasonable doubt. Under the analysis in Descamps, which was adopted in Kansas by the Supreme Court in Dickey, a court may use one of two approaches to determine whether a prior conviction may be used for sentencing purposes. The categorical approach is appropriate “when the statute forming the basis of the defendant's prior conviction contains a single set of elements constituting the crime,” and consists of comparing the elements of the two crimes; if the elements of the prior crime of conviction are the same as or narrower than the later offense, the prior crime may be used for sentencing purposes. See Dickey, 301 Kan. at 1037. The second approach, the modified categorical approach, “applies when the statute forming the basis of the prior conviction is a ‘divisible statute,’ i.e., a statute which includes multiple, alternative versions of the crime and at least one of the versions matches the elements of the generic offense.” 301 Kan. at 1037.
Relevant here, subsection 750.110a(4) of the Michigan statute governing home invasion is divisible: paragraph (a) of the subsection allows for a conviction based on intent to commit, or committing, a misdemeanor when entering into or remaining within a dwelling and paragraph (b) of the subsection allows for a conviction based on violation of a term or condition of probation, parole, protection order, or bond condition when entering into or remaining within a dwelling. Accordingly, it is possible that one of the permutations of elements under which a defendant may commit a home invasion in Michigan could match the elements of Kansas burglary. Under Descamps and Dickey, the modified categorical approach is appropriate. That approach allows a sentencing court, without running afoul of Apprendi, “to look beyond the elements of the statute and examine a limited class of documents to determine ‘which of a statute's alternative elements formed the basis of the defendant's prior conviction.’ “ Dickey, 301 Kan. at 103738. Such documents include “charging documents, plea agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well as findings of fact and conclusions of law from a bench trial.” 301 Kan. at 1038. The sentencing court did not employ this approach in Sturgis' case.
Under K.S.A.2012 Supp. 21–6811(e), by classifying Sturgis' Michigan home invasion conviction as a person felony, the sentencing court appears to have found that it was comparable to K.S.A.2012 Supp. 21–5807(a)(1), which is “without authority, entering into or remaining within any ... [d]welling, with intent to commit a felony, theft or sexually motivated crime therein.” Yet, as Sturgis correctly argues, it is possible that the Michigan home invasion conviction did not involve these elements, and the sentencing court did not receive any evidence to support its implied finding that it did. The sentencing court erred in making that factual finding without examining the permissible documents identified in Dickey for information that would have supported such a finding.
For these reasons, we must vacate Sturgis' sentence and remand for further proceedings to determine whether his Michigan home invasion conviction should be classified as a person or nonperson offense for criminal history purposes. At resentencing, the district court may examine documents related to the Michigan home invasion conviction for purposes of determining the nature of the offense, including charging documents, plea agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well as findings of fact and conclusions of law from any bench trial. See Dickey, 301 Kan. at 1038. If the district court is unable to determine the basis of the Michigan home invasion conviction or if the court determines that it involved entry of a dwelling with intent to commit a nontheft misdemeanor that was not sexually motivated, then there is no comparable Kansas offense and the Michigan home invasion conviction must be classified as a nonperson felony. However, if the district court determines that the Michigan home invasion conviction involved entering a dwelling with intent to commit a felony, theft, or sexually motivated crime, then the Michigan home invasion conviction can be classified as a person felony.
Affirmed in part, vacated in part, and remanded with directions.