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State v. Rodriguez

Supreme Court of Kansas

March 24, 2017

State of Kansas, Appellee,
Tiofilo Rodriguez, Appellant.


         1. Charging documents do not bestow or confer subject matter jurisdiction on state courts to adjudicate criminal cases; the Kansas Constitution does.

         2. Charging documents need only show that a case has been filed in the correct court, e.g., the district court rather than municipal court; show that the court has territorial jurisdiction over the crime alleged; and allege facts that, if proved beyond a reasonable doubt, would constitute a Kansas crime committed by the defendant.

         3. A Kansas charging document should be regarded as sufficient if the State's factual allegations of the defendant's intention and action, when compared to the statutory definition of the crime charged and when proved beyond a reasonable doubt, would justify a guilty verdict.

         4. If a charging document is statutorily insufficient, the next step is a harmlessness inquiry under K.S.A. 2015 Supp. 60-261 and K.S.A. 60-2105 to examine whether the defect affected the defendant's substantial rights.

         5. An out-of-state misdemeanor that only requires the defendant to act with criminal negligence is not comparable to a Kansas offense that requires the defendant to act recklessly. If an out-of-state misdemeanor is not comparable to a Kansas offense, it must be scored as a nonperson crime in this state.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed February 6, 2015.

         Appeal from Grant District Court; Clinton B. Peterson, judge. Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, sentence vacated, and case remanded with directions.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

          Jessica E. Akers, county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the briefs for appellee.


          Johnson, J.

         Tiofilo Rodriguez petitions this court for review of the Court of Appeals' decision in State v. Rodriguez, No. 110, 346, 2015 WL 715528 (Kan. App. 2015) (unpublished opinion), which affirmed his conviction and sentence for aggravated kidnapping and related charges. We granted the petition in part, designating two issues for review, to-wit: (1) whether the information charging Rodriguez with aggravated kidnapping was so defective as to warrant reversal; and (2) whether two prior Colorado misdemeanor convictions were improperly classified and aggregated with another misdemeanor conviction to be scored as a person felony for criminal history purposes. Under the paradigm for analyzing defective charging instrument claims raised for the first time on appeal recently established in State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016), the claimed defects in charging Rodriguez with aggravated kidnapping do not require reversal of that conviction. But the State failed to establish that the Colorado convictions qualified for aggregation in this state. Accordingly, Rodriguez' convictions are affirmed, but his sentence is vacated and the case is remanded for resentencing under the appropriate criminal history score.

         Factual and Procedural Overview

         On December 29, 2011, Rodriguez lived with his girlfriend, Alicia Apodaca, and her two sons, J.R. and S.R., in Alicia's apartment in Ulysses. At the time, J.R. was age 14 and S.R. was 13 years old. On that date, Alicia decided to sleep in her sons' bedroom, after smelling liquor on Rodriguez' breath. But Rodriguez entered the boys' bedroom and, after watching television for a time, suddenly shut the door, telling Alicia and the boys that they would not be getting out of the bedroom ever again. He battered Alicia for about 2 hours, punching and kicking her in the face, legs, head, and back, as well as pulling her hair. Rodriguez repeatedly threatened that Alicia would not live through the night and that her sons were going to watch her die. When the boys tried to help their mother, Rodriguez hit and shoved them. He tied the boys' ankles with shoelaces.

         When Alicia tried to escape, Rodriguez threw her against the wall with such force that the impact broke the sheetrock. Alicia required medical attention at the hospital and would later relate that her vision was blurry for 2 weeks.

         Although Rodriguez broke one cellphone, the three victims managed to call 911 during the ordeal. Ultimately a Grant County Sheriff's deputy and Ulysses police officer arrived and started to force their way in when they heard screaming and glass breaking. Deputy Johnathon Smith began to kick in a door, before Rodriguez opened the door and let the officers in. Officer Julie Hart found Alicia, J.R., and S.R. barricaded in the bedroom. The officer cut the shoelaces from S.R.'s ankles and observed that his hands were bloody. He had broken the glass window to get the officers' attention when he heard them arrive.

         While Smith was leading Rodriguez out of the apartment in handcuffs, Rodriguez told Alicia, J.R., and S.R. that when he got out of jail he would come back to "get them" and finish what he started. He bragged that he could get out of the handcuffs at any time.

         Officer Hart interviewed the victims at their home and later at the hospital and took pictures of Alicia's injuries. The boys' testimony at trial was fairly consistent with Officer Hart's account and their testimony at the preliminary hearing, albeit there were some discrepancies. J.R. and S.R. both testified at the preliminary hearing that Rodriguez had not threatened their lives, but at the jury trial, they both said that Rodriguez had threatened them. They explained the difference by saying they were nervous at the preliminary hearing because it was the first time they had seen Rodriguez since the ordeal. Alicia's trial testimony was consistent with her prior statements, except that she added at trial that all three victims had vomited into a trash can during the violence.

         Rodriguez testified on his own behalf. He admitted to hitting Alicia three times. He said they were arguing because Alicia was calling or texting someone else and she had asked him to move out-first within 2 weeks, but then said to be out within 6 days. Rodriguez denied all other accusations, specifically stating that he had not hit Alicia more than three times, had not kicked her, and had not pushed her against the wall. He claimed the hole in the sheetrock occurred after he left the room to open the door for the police. He also denied hitting S.R. and J.R., denied threatening them, and denied tying them up. He said he never prevented anyone from leaving the bedroom.

         Rodriguez called three witnesses-cousins with whom he spent the evening before returning to the apartment on the night of the incident. The first two witnesses, Herminia Parada and Nancy Guerrero, said Rodriguez was at their houses from 2:30 to 7:30 p.m. on the 28th. They also said he was only fluent in English, not Spanish, presumably to refute the shouting in Spanish that can be heard on the recorded 911 calls. Nevertheless, a female voice can be heard on the recording pleading, "Tio, no."

         The third witness, Sisto Rodriguez, said he and Rodriguez drank together that evening until about 11:30 but that Rodriguez did not seem drunk when he left, despite the two having split a 12-pack ...

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