Opinion
110,975.
04-17-2015
STATE of Kansas, Appellee, v. Eugene YOUNG, Appellant.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Susan Alig, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.
Susan Alig, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BRUNS, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Eugene Young, Jr.'s direct appeal of his jury trial convictions for aggravated assault on a law enforcement officer and eluding a police officer. Based on his criminal history score of “A,” the district court sentenced Young to 40 months' imprisonment with 24 months' postrelease supervision. Young also challenges his sentences.
Young's charges arose out of an incident in which a police officer attempted to initiate a traffic stop. Young failed to stop, and the officer initiated pursuit. Another officer set out a set of stop sticks to halt Young's vehicle, but Young still did not pull over. Another unit deployed a second set of stop sticks. Young slowed down, swerved to get around the stop sticks, then swerved again and accelerated at a high rate of speed toward another officer, Joseph Reed, who was in uniform and standing 5 or 6 feet off the road. Young was aware of Reed's presence. When Young's vehicle came at Reed, Reed dropped his gun and retreated up a hill, falling in the process. Reed testified he was afraid he was going to be run over by Young's vehicle and feared for his life. Young veered back onto the roadway and continued on. Eventually he was apprehended.
Young had an innocent explanation for all of this at trial, but the jury rejected Young's explanation and convicted him as charged. After the disposition of posttrial motions and sentencing, this appeal followed. Because Young's appeal was untimely, we remanded the case to the district court for an Ortiz hearing. On remand, the district court determined that an Ortiz exception applied because Young told his trial attorney to file an appeal, and his trial attorney did not perfect the appeal. Thereafter, we issued an order retaining jurisdiction of this appeal.
Sufficiency of the Evidence
For his first issue, Young contends there was insufficient evidence to support his conviction for aggravated assault of a law enforcement officer because the State failed to prove that he knowingly placed Reed in reasonable apprehension of bodily harm. He asserts that the evidence did not show that Young was aware that he was placing Reed in such fear for his personal safety and that any apprehension by Reed was unreasonable.
In considering this issue, we review the evidence in the light favoring the State to determine whether we are convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In making this determination, we do not reweigh the evidence or redetermine the credibility of the witnesses. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).
The jury was instructed on the elements of the aggravated assault charge, to wit:
“To establish this charge, each of the following claims must be proved:
“1. The defendant knowingly placed Officer Joseph Reed in reasonable apprehension of immediate bodily harm.
“2. Officer Joseph Reed was a uniformed or properly indentified [sic ] City law enforcement officer.
“3. Officer Joseph Reed was engaged in the performance of his duty.
“4. The defendant did so with the intent to commit the crime of Eluding a Police Officer.
“5. This act occurred on or about the 26th day of January, 2013, in Wyandotte County, Kansas. ”
Further, the jury was instructed that the State must prove that Young committed the first element of the charge knowingly. The instruction provided: “The defendant acts knowingly when the defendant is aware that his conduct was reasonably certain to cause the result complained about by the State.”
Viewing the trial testimony in the light favoring the State, the evidence was sufficient to convict Young of this crime. Reed's fear for his personal safety was reasonable under the circumstances. Further, there was sufficient evidence to establish that Young acted knowingly.
Criminal History Score
Next, Young argues that his sentences were illegal because his criminal history score was improperly calculated as an “A” based on his prior convictions and juvenile adjudications for numerous pre–1993 felonies. He argues that his pre–1993 crimes were not classified as person or nonperson crimes at the time he committed them. Under State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by order September 19, 2014, he argues that all pre–1993 guideline felonies must be scored as nonperson felonies. Young stipulated to his criminal history score, but he asserts on appeal that one cannot stipulate to an incorrect application of the law.
Indeed, an allegation that an incorrect criminal history score resulted in an illegal sentence can be considered by this court for the first time on appeal. See State v. Kelly, 298 Kan. 965, 975–76, 318 P.3d 987 (2014) ; State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011). Thus, we can consider this issue. In doing so, our review is unlimited. Murdock, 299 Kan. at 314.
The State concedes that pursuant to Murdock, Young's pre–1993 Missouri felony conviction should have been classified as a nonperson felony. But it argues that the remainder of his convictions were properly classified and Young's criminal history score was properly an “A.”
Young's presentence investigation report (PSI) includes 20 previous convictions. After 1993, he had one conviction for a person felony, aggravated battery, in 2007. Prior to 1993, Young had been convicted of an adult person felony in 1983 in Missouri and a number of Kansas adult person felonies and juvenile adjudications for person felonies.
Young's 1983 Missouri conviction should have been scored as a nonperson felony under Murdock. There remains the question as to whether Young's adult Kansas person felonies and his Kansas juvenile person felonies predating 1993 were properly scored.
To begin, Young argues that K.S.A.2014 Supp. 21–6810(d)(6) requires all unclassified felonies and misdemeanors to be scored as nonperson crimes for the purpose of determining criminal history. But the Murdock court addressed this issue and pointed out that the Kansas criminal statutes still contain a handful of statutes that do not categorize the crimes as person or nonperson offenses, and it concluded that that subsection was adopted to address those crimes. 299 Kan. at 318–19.
In State v. Waggoner, 51 Kan.App.2d 144, 343 P.3d 530 (2015), petition for rev. filed February 18, 2015, a panel of this court determined that the defendant's Kansas, pre1993 juvenile adjudication had been properly scored as a person felony for criminal history purposes. The Waggoner court concluded that Murdock did not overrule prior Court of Appeals' decisions involving in-state, pre-KSGA offenses. Those prior decisions determine the person/nonperson classification of in-state, pre-KSGA offenses for criminal history purposes by comparing the offenses to the current guideline offenses. Waggoner, 51 Kan.App.2d at 151.
While courts strictly construe criminal statutes against the State, this principle is subordinate to the rule that judicial interpretation must be reasonable and sensible in order to effectuate the legislative design and true intent of the law. Under the KSGA, person crimes are weighted more heavily than nonperson crimes. Thus, the Waggoner court concluded that classifying all pre-KSGA crimes as nonperson crimes would effectuate an absurd result and would run counter to the overall design and legislative purposes of the KSGA. Waggoner, 51 Kan.App.2d at 154–55.
The court in Waggoner concluded that courts should focus on the nature of the offense as defined by its statutory elements when determining whether to designate a crime as a person or nonperson crime. It noted that crimes which inflict, or could inflict, physical or emotional harm to another are generally designated as person crimes, whereas crimes that inflict, or could inflict, damage to property are generally designated as nonperson crimes. From there, it determined that the defendant's pre–1993 juvenile adjudication for attempted aggravated battery should be scored as a person felony for criminal history purposes. Waggoner, 51 Kan.App.2d at 156–57.
A similar analysis and outcome is found in State v. Piercy, No. 110,526, 2014 WL 7152316, at *10–13 (Kan.App.2014) (unpublished opinion), petition for rev. filed January 9, 2015, in which the panel considered the crime of battery and noted that the statute criminalizing that conduct was found in Article 34 of the Criminal Code, which designated crimes thereunder as “ ‘Crimes against persons. ’ “ 2014 WL 7152316, at *13.
In our present case, Young's criminal history includes a 2007 Kansas conviction for aggravated battery. His pre–1993 Kansas convictions and juvenile adjudications consist of the following:
• 1977—Burglary under K.S.A. 21–3715 (Juvenile)
• 1979—Aggravated assault of a law enforcement officer under K.S.A. 21–3411 (Juvenile)
• 1979—Aggravated assault of a law enforcement officer under K.S.A. 21–3411 (Juvenile)
• 1979—Aggravated assault of a law enforcement officer under K.S.A. 21–3411 (Juvenile)
• 1981—Aggravated robbery without a gun under K.S.A. 21–3427
• 1986—Aggravated assault under K.S.A. 21–3410
Young's 1986 aggravated assault conviction was under Article 34 of the Criminal Code—“Crimes against persons”—and was defined as “(a) Unlawfully assaulting or striking at another with a deadly weapon; or (b) Committing assault by threatening or menacing another while disguised in any manner designed to conceal identity; or (c) Willfully and intentionally assaulting another with intent to commit any felony.” K.S.A. 21–3410 (Ensley 1981). This crime was a class D felony. Based on its elements, this crime is one in which the defendant inflicts or could inflict physical or emotional harm to another. This prior conviction was properly classified as a person felony for criminal history purposes.
Young's 1981 conviction for aggravated robbery without a gun also was properly classified as a person felony. At the time, K.S.A. 21–3427 (Ensley 1981) defined the crime as “a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” Robbery was defined as “the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” K.S.A. 21–3426 (Ensley 1981). Both crimes were codified in Article 34, “Crimes against persons.” Aggravated robbery was a class B felony. Based on its elements, this crime is one in which the defendant inflicts or could inflict physical or emotional harm to another and should be treated as a person crime.
We need not dwell on the fact that Young's three 1979 juvenile adjudications for aggravated assault of a law enforcement officer under K.S.A. 21–3411 were also properly classified as person felonies. This is because a defendant is scored as an “A” for criminal history purposes when he or she has a criminal history that includes three or more adult convictions or juvenile adjudications, in any combination, for person felonies. K.S.A. 21–4709. Young's two pre–1993 adult convictions, when combined with his 2007 adult conviction for aggravated battery, result in a criminal history score of “A.” The district court did not err in calculating Young's criminal history score or in sentencing him.
Apprendi v. New Jersey
Finally, Young argues his Sixth and Fourteenth Amendment constitutional rights were violated because the State used his prior convictions to increase his sentence without proving those convictions to a jury beyond a reasonable doubt as required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court rejected this argument in State v. Ivory, 273 Kan. 44, 47–48, 41 P.3d 781 (2002). We are duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The ruling in Ivory was recently reaffirmed by the Kansas Supreme Court in State v. Hall, 298 Kan. 978, 991, 319 P.3d 506 (2014). Thus, we are bound by Ivory, and Young's argument on this point necessarily fails.
Affirmed.