Charging documents do not bestow or confer subject matter
jurisdiction on state courts to adjudicate criminal cases;
the Kansas Constitution does.
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.
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.
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
of the judgment of the Court of Appeals in an unpublished
opinion filed February 6, 2015.
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
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 App. 2015) (unpublished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.
and Procedural Overview
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.
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.
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.
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.
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.
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
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."
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 ...