of the judgment of the Court of Appeals in an unpublished
opinion filed December 18, 2015.
SYLLABUS BY THE COURT
reviewing a claim of prosecutorial error, an appellate court
must first determine whether the prosecutor's actions
fall outside the wide latitude afforded prosecutors to
conduct the State's case and attempt to obtain a
conviction in a manner that does not offend the
defendant's constitutional right to a fair trial. If
error is found, the court moves to the prejudice step and
applies the traditional constitutional harmlessness inquiry
demanded by Chapman v. California, 386 U.S. 18, 87
S.Ct. 824, 17 L.Ed.2d 705 (1967), i.e., determines whether
the State can show there is no reasonable possibility that
the error affected the verdict.
classification of prior offenses for criminal history
purposes involves the interpretation of the revised Kansas
Sentencing Guidelines Act; statutory interpretation is a
question of law subject to unlimited review.
Prior out-of-state convictions are used in the calculation of
a person's criminal history score under the revised
Kansas Sentencing Guidelines Act. The State of Kansas shall
classify the out-of-state conviction as a person or nonperson
offense by referring to comparable offenses under the Kansas
criminal code in effect on the date the current crime of
conviction was committed. If the State of Kansas does not
have a comparable offense in effect on the date the current
crime of conviction was committed, the out-of-state
conviction shall be classified as a nonperson crime.
an out-of-state conviction to be comparable to an offense
under the Kansas criminal code, within the meaning of K.S.A.
2017 Supp. 21-6811(e) (the amended version of K.S.A. 2012
Supp. 21-6811[e]), the elements of the out-of-state crime
cannot be broader than the elements of the Kansas crime. In
other words, the elements of the out-of-state crime must be
identical to, or narrower than, the elements of the Kansas
crime to which it is being referenced.
from Sedgwick District Court; Stephen J. Ternes, judge.
Schirer, of Kansas Appellate Defender Office, argued the
cause and was on the brief for appellant.
J. Gillett, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with him on the brief for appellee.
D. Sturgis seeks review of the Court of Appeals'
determination that the prosecutorial error in closing
argument was harmless and that the district court correctly
classified a 2007 Michigan home invasion conviction as a
person felony when calculating Sturgis' criminal history
score under the revised Kansas Sentencing Guidelines Act
(KSGA). State v. Sturgis, No. 112, 544, 2015 WL
9286956 (Kan. App. 2015) (unpublished opinion). We affirm
Sturgis' conviction, but we vacate his sentence and
remand for resentencing with a criminal history score that
classifies the Michigan home invasion conviction as a
AND PROCEDURAL OVERVIEW
jury convictions for criminal possession of a firearm and
theft were the result of an incident in Derby on January 10,
2013, that appeared to be an armed robbery of a Casey's
General Store. At the time, Sturgis was living with his
then-girlfriend, Carland "Carly" Ballinger, who
worked as a cashier at the convenience store. Sturgis asked
Ballinger that morning what she would do if he robbed the
Casey's store while she was working, but she thought he
that day, however, Sturgis robbed the store while Ballinger
was on duty. Although Sturgis had his face covered with a
black bandana, he briefly lowered it to reveal his identity
to Ballinger. After Sturgis left with the money Ballinger
gave him from the cash register and the safe, Ballinger
called 911 to report an armed robbery.
Ballinger did not tell law enforcement about Sturgis'
involvement. About six months later, however, the
relationship ended and Ballinger told the police that Sturgis
had been the robber. Sturgis countered Ballinger's
testimony with an alibi defense, putting on several witnesses
to testify that Sturgis had been at a family gathering at his
uncle's house in Wichita at the time of the robbery. The
jury convicted Sturgis of both offenses.
sentencing court calculated Sturgis' criminal history
score as B, based in part on a prior Michigan conviction for
third-degree home invasion that the court classified as a
person crime. ...