State v. Rodriguez

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,346

STATE OF KANSAS,
Appellee,

v.

TIOFILO RODRIGUEZ,
Appellant.

SYLLABUS BY THE COURT

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.

1
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Review of the judgment of the Court of Appeals in an unpublished opinion filed February 6,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. Opinion filed March 24, 2017.
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.

The opinion of the court was delivered by

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(unpublished opinion), which affirmed his conviction and sentence for aggravated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

2
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.

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 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
4
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 of beer. Sisto also said Rodriguez was not fluent in Spanish.

The jury found Rodriguez guilty of aggravated kidnapping of Alicia, kidnapping
of J.R., kidnapping of S.R., aggravated battery of Alicia, criminal threat of Alicia,
criminal threat of J.R., criminal threat of S.R., battery of J.R., and battery of S.R. The
jury found Rodriguez not guilty of aggravated assault of Alicia and criminal damage to
property.

The prior conviction worksheet on Rodriguez' presentence investigation report
reflected two Colorado misdemeanor convictions for third-degree assault, pursuant to
Colo. Rev. Stat. § 18-3-204, and a misdemeanor battery conviction from the municipal
court in Ulysses. Aggregating the three misdemeanors to score as one person felony
elevated Rodriguez' criminal history score from D to B. Rodriguez, 2015 WL 715528, at
*13.

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 At the sentencing hearing, the defense called Parada and Guerrero to testify to
their cousin's good character and to cast aspersions on the victims' motives. Rodriguez
took the stand to ask the court to take into consideration the various good acts he had
performed, particularly his service in the Marines around the time of the first Iraq war.
During his allocution, Rodriguez made the following statement, which the sentencing
court apparently interpreted as a stipulation to the criminal history score, to-wit:

"I got my presentence report. Yeah, you know, [the State] wants to use my record
against me, and that's the law. That's the law, Judge, you know that. That is the law. I'm
not—I'm not fighting that. If you're going to use that against me, use what I've done
good. I've done a lot more good than I've done bad, I have."

Using a criminal history score of B, selecting the aggravated grid box sentence for
each of the felonies, and imposing the sentences consecutively, the court sentenced
Rodriguez to a controlling prison term of 774 months, or 64 ½ years. Rodriguez timely
appealed, and a divided panel of the Court of Appeals affirmed his conviction. The
concurring and dissenting judge, Senior Judge Edward Larson, challenged the statutory
authority to aggregate the Colorado misdemeanors and would have vacated Rodriguez'
sentence and remanded to resentence with a criminal history of D.

Rodriguez sought our review on five issues, but we granted review on only the
two issues described above relating to a defective charging instrument and the
aggregation of out-of-state misdemeanor convictions.

6
 DEFECTIVE CHARGING INSTRUMENT

For the first time on appeal, Rodriguez contends that the information in his case,
even as amended, failed to charge him with the crime of aggravated kidnapping against
Alicia. Aggravated kidnapping incorporates the elements of simple kidnapping, which, in
turn, requires that the kidnapper confine the victim with the intent to hold the person for
one of four statutorily specified purposes. K.S.A. 2011 Supp. 21-5408. The specific intent
set forth in the jury instructions with respect to the kidnapping of Alicia was the one
described in K.S.A. 2011 Supp. 21-5408(a)(3), which is "[t]o inflict bodily injury or to
terrorize the victim or another."

But neither that specific intent element nor any other was included in the charging
document. Instead, the information simply alleged that Rodriguez did "take or confine
any person, to wit: ALICIA APODACA, accomplished by force, threat, or deception,
and bodily harm is inflicted upon the person kidnapped." The last part of the charge—
about bodily harm being inflicted—was necessary in this case because kidnapping is
elevated to aggravated kidnapping "when bodily harm is inflicted upon the person
kidnapped." K.S.A. 2011 Supp. 21-5408(b).

Rodriguez asserts that, because the charging document omitted the specific intent
element, it failed to charge kidnapping. Consequently, if the information did not charge
kidnapping, it could not charge aggravated kidnapping, but rather only charged the crime
of criminal restraint. He asks this court to overrule State v. Hall, 246 Kan. 748, 793 P.2d
737 (1990), with respect to the analysis employed on defective complaint claims raised
for the first time on appeal, and find that the omitted element requires reversal. In the
alternative, Rodriguez argues that, even under the Hall test, the defective complaint
precluded any challenge to the sufficiency of the evidence to support kidnapping because
7
the defendant could not know which specific intent the State was trying to prove. Thus,
the conviction should be reversed because Rodriguez was deprived of his "substantial
rights to a fair trial."

The Court of Appeals panel opined that it was still duty-bound to follow the
precedent set in Hall. Rodriguez, 2015 WL 715528 at, *7; see State v. Ottinger, 46 Kan.
App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012) (Court of
Appeals is duty bound to follow Kansas Supreme Court precedent absent indication
Supreme Court is departing from previous position). Further, it rejected Rodriguez'
argument that the missing element claim should be reviewed under a sufficiency of the
evidence theory and found that the evidence was sufficient for the jury to convict of
aggravated kidnapping under the elements instruction given to the jury. 2015 WL
715528, at *8-9.

Standard of Review

As Rodriguez acknowledged in his petition for review, at that point in time, this
court was seeking additional briefing on the Hall analysis in the Dunn case and the
outcome of that case could affect Rodriguez' claims. The decision in Dunn was
subsequently filed, and it will affect this case. It overruled Hall's special preservation
treatment of defective charging instrument errors, as well as overruling the notion that the
charging document bestows or confers subject matter jurisdiction on state courts to
adjudicate criminal prosecutions. Dunn, 304 Kan. at 811. Given that the Court of Appeals
based its decision on Hall, we must, by necessity, exercise de novo review of this issue.

8
Analysis

As suggested above, Dunn overruled a substantial amount of the law that had been
applicable to charging document challenges for at least the last half-century. See, e.g.,
State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966) (omitted element in charging
document will result in reversal for lack of jurisdiction). Dunn summarized the result of
those changes as follows:

"[C]harging 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." 304 Kan. at 811.

Because of that subsequently overruled prior caselaw, Rodriguez understandably
based his arguments on his assertion that the charging document did not contain all of the
elements of aggravated kidnapping. But Dunn also specifically overruled the "categorical
declaration that a charging document must include all essential elements of the charged
offense to avoid insufficiency." 304 Kan. at 811. Instead, a charging document's
sufficiency is now tested by comparing the facts it alleges against the statutory definition
of the charged crime. As Dunn explained:

"The plain language of K.S.A. 22-3201(b) is relatively clear: A charging
document shall state 'essential facts' constituting the crime charged, and the document
'shall be deemed sufficient' if it is 'drawn in the language of the statute.' The statute's
emphasis on 'facts' rather than 'elements' is repeated in other related statutes and legally
significant. A Kansas charging document should be regarded as sufficient now, as it was
before Minor, when it has alleged facts that would establish the defendant's commission
9
 of a crime recognized in Kansas. See State v. Hazen, 160 Kan. 733, 736-39, 165 P.2d 234
(1946) (charging document sufficient despite failure to include affirmative allegation that
defendant intended a specific person bodily injury); James [v. Amrine, 157 Kan. 397,
400, 140 P.2d 362 (1943)] (charging document sufficient despite erroneously alleging
crime took place 6 months after defendant's trial); [State v.] Keester, [134 Kan. 64, 71,
4 P.2d 679 (1931)] (charging document merely discloses jurisdiction; not necessary for
charging document to state both counties in which crime took place). Because all crimes
are statutorily defined, this is a statute-informed inquiry. The legislature's definition of
the crime charged must be compared to the State's factual allegations of the defendant's
intention and action. If those factual allegations, proved beyond a reasonable doubt,
would justify a verdict of guilty, then the charging document is statutorily sufficient. If
the charging document is instead statutorily insufficient, then the State has failed to
properly invoke the subject matter jurisdiction of the court, and an appropriate remedy
must be fashioned. The problem is not a substantive absence of jurisdiction; it is a
procedural failure to demonstrate its existence. The availability of a remedy is key.
Statutory infirmity does not inevitably fail to bestow subject matter jurisdiction or
deprive the court of jurisdiction or destroy jurisdiction. See K.S.A. 22-3502 (arrest of
judgment available if charging document does not charge crime or court without
jurisdiction)." (Emphasis added.) 304 Kan. at 811-12.

Although argued in the context of a missing element, Rodriguez' contention is that
the information failed to allege that he confined Alicia with the specific intent to inflict
bodily injury or to terrorize Alicia or another. Instead, the charging document simply
alleged that Rodriguez took or confined Alicia by force, threat, or deception—without
alleging a reason for such taking or confinement—and that bodily injury was inflicted
upon Alicia. Under the new test from Dunn, the question becomes whether proof of those
charging document factual allegations would produce sufficient evidence from which a
rational jury could find, beyond a reasonable doubt, that Rodriguez committed the crime
of kidnapping as it is defined by statute.

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 Rodriguez presents a compelling argument; it would not be sufficient evidence of
kidnapping, as defined in K.S.A. 2011 Supp. 21-5408(a), for the State to prove only the
physical act of taking or confining a person by force, threat, or deception. Otherwise, a
person who, by force, threat, or deception, takes an uncooperative surprise party honoree
to the party site could be subject to prosecution for the crime of kidnapping. And, if
bodily injury is inflicted on the honoree by a guest's exuberant expression of surprise, the
"crime" would be elevated to aggravated kidnapping. In other words, a "statute-informed
inquiry," 304 Kan. at 812, reveals that an actor's reasons for holding a victim are an
indispensable part of the crime of kidnapping. See K.S.A. 2011 Supp. 21-5408(a)(1)-(4).

As noted above, Dunn instructs us to compare the legislature's definition of
kidnapping "to the State's factual allegations of the defendant's intention and action."
304 Kan. at 812. Here, however, the State made no factual allegations regarding
Rodriguez' intention. Perhaps if the information had alleged that it was Rodriguez who
had inflicted the bodily injury on Alicia, one could reasonably infer that, because he
inflicted bodily injury on Alicia, he forcibly confined her with the intent to inflict that
bodily injury. But the passive voice of the charging document—"bodily harm is inflicted
upon the person kidnapped"—does not necessarily support an inference that Rodriguez
inflicted the bodily injury, much less that he intended to hold the victim for that purpose.
Consequently, the State failed to charge the crime of aggravated kidnapping of Alicia.

The next step in the Dunn analysis is a "harmlessness inquiry under K.S.A. 2015
Supp. 60-261 and K.S.A. 60-2105," to "examine whether the defect affected [Rodriguez']
substantial rights." 304 Kan. at 821. Dunn concluded that the charging document error in
that case did not affect the defendant's substantial rights "because [Dunn] and his trial
counsel clearly understood exactly what the State sought to prove on [the forgery count]."
304 Kan. at 821.

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 The same is true for Rodriguez. His trial testimony was aimed at refuting the
State's claim that he intended to inflict bodily injury or terrorize the victims. Rodriguez
testified that he argued with Alicia and admitted to hitting her three times. But then he
specifically denied that he had hit Alicia more than three times; denied that he had kicked
her; and denied that he had pushed her against the wall. With respect to S.R. and J.R.,
Rodriguez denied hitting them, denied threatening them, and denied tying them up. He
claimed that he never prevented anyone from leaving the bedroom. The defense called
three witnesses to testify that Rodriguez did not speak Spanish, presumably to refute that
it was his voice terrorizing the victims in Spanish on the recorded 911 calls. In short,
Rodriguez defended as if he had been explicitly told that the claim against him was that
he confined Alicia in the bedroom by force or threat with the intent to hold her to inflict
bodily injury or terrorize her, and that she did sustain bodily injury. A more carefully
worded charging document would not have changed the defense. Rodriguez' substantial
rights were not affected by the error.

AGGREGATION OF COLORADO MISDEMEANOR CONVICTIONS

In the second issue upon which we granted review, Rodriguez challenges the
district court's use of a criminal history score of B to impose the sentence on the base
offense of aggravated kidnapping. The presentence investigator arrived at that score by
aggregating three misdemeanors to rate as an additional person felony. See K.S.A. 2011
Supp. 21-6811(a) (every three prior convictions for Class A or Class B person
misdemeanor counted as one person felony). Rodriguez argues that two of the aggregated
convictions were for Colorado misdemeanors that were not subject to aggregation under
the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2011 Supp. 21-6801 et
seq., and that his score should have been D. That change in criminal history score would
reduce the maximum presumptive sentence for aggravated kidnapping from 618 months

12
to 267 months, i.e., Rodriguez' prison term would be shortened by more than 29 years.
2015 WL 715528, at *16.

Standard of Review

Our resolution of the question presented on determining a criminal history score
will involve statutory interpretation, which is a question of law subject to de novo review.
See State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015) (whether prior conviction
should be classified as person or nonperson offense involves interpretation of KSGA, a
question of law over which appellate courts have unlimited review).

Analysis

First, we pause briefly to address the notion that Rodriguez' statements during
allocution included a criminal history stipulation that invited any error in the calculation
of his criminal history score. The Court of Appeals noted that Rodriguez was challenging
the classification and aggregation of his prior convictions, not their existence, and, as
such, those were "questions of law . . . not subject to the invited error rule as no party can
stipulate to an incorrect application of the law. [Citation omitted.]" Rodriguez, 2015 WL
715528, at *13. We agree. See also State v. Hankins, 304 Kan. 226, 231-32, 372 P.3d
1124 (2016) (Kansas criminal defendant cannot stipulate to illegal sentence). Further, the
panel opined that Rodriguez' "statements were not close to being a stipulation of his
criminal history score." 2015 WL 715528, at *14. Again, we agree and turn to the merits.

As noted above, K.S.A. 2011 Supp. 21-6811(a) specifically provided for the
aggregation of "[e]very three prior adult convictions . . . of class A and class B person
misdemeanors in the offender's criminal history, or any combination thereof," to be
scored as "a person felony for criminal history purposes." The KSGA also allowed for the
13
use of out-of-state convictions in the calculation of Rodriguez' criminal history score,
which would include the aggregation procedure. Specifically, K.S.A. 2011 Supp.
21-6811(e) provided:

"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."

Rodriguez' two prior Colorado convictions were for a crime labeled third-degree
assault under Colo. Rev. Stat. § 18-3-204. One conviction was in 2001 and the other in
2005. Although the Colorado statute was amended in 2004, the statutory language
defining the crime of third-degree assault that is relevant to our inquiry has remained
substantively the same since 1977, to-wit:

"A person commits the crime of assault in the third degree if the person
knowingly or recklessly causes bodily injury to another person or with criminal
negligence the person causes bodily injury to another person by means of a deadly
weapon. Assault in the third degree is a class 1 misdemeanor[.]" Colo. Rev. Stat.
§ 18-3-204 (2004).

Because Colorado classified third-degree assault as a misdemeanor, K.S.A. 2011
Supp. 21-6811(e) required that those convictions be scored as misdemeanors in
calculating a Kansas criminal history. But the same statute directs this state to determine
the classification of the misdemeanor as person or nonperson by referring to comparable
offenses. Both the majority and dissenting opinions below refer to an earlier Court of
Appeals decision, State v. LaGrange, 21 Kan. App. 2d 477, 481-82, 901 P.2d 44, rev.

14
denied 258 Kan. 861 (1995), which applied K.S.A. 1994 Supp. 21-4711(e)—an earlier,
yet identical version of K.S.A. 2011 Supp. 21-6811(e)—to Colorado's third-degree
assault.

LaGrange opined that while the Kansas statute precluded classifying the Colorado
conviction as a felony for Kansas criminal history purposes because Colorado classified it
as a misdemeanor, "the statute does not prevent a [Kansas] court from considering a
felony as a comparable offense for purposes of determining whether an out-of-state
misdemeanor offense is a person or nonperson crime." 21 Kan. App. 2d at 482. After
relating that the gravamen of the Colorado offense was "with criminal negligence . . .
caus[ing] bodily injury to another person . . . by means of a deadly weapon," LaGrange
determined that the comparable Kansas offense was aggravated battery, a person felony,
defined under K.S.A. 1994 Supp. 21-3414(a)(2)(B) as "'recklessly causing bodily harm to
another person with a deadly weapon.'" 21 Kan. App. 2d at 481. Accordingly, LaGrange
found that the Colorado conviction could be classified as a person misdemeanor for
Kansas criminal history purposes.

LaGrange inexplicably ignored the statutory language in K.S.A. 1994 Supp.
21-4711(a) making aggregation only applicable to "class A and class B person
misdemeanors." The rule it applied was simply that "three prior person misdemeanors
count as one prior person felony conviction." 21 Kan. App. 2d at 481. Therefore,
LaGrange was not constrained by the absence of a statutory mechanism for classifying
out-of-state misdemeanors as either class A or class B in this state. Rather, that panel
simply held that the Colorado conviction, classified as a person misdemeanor in this
state, could be used for a K.S.A. 2011 Supp. 21-6811(a) aggregation.

Because we find LaGrange's comparability holding to be flawed, we need not
resolve the dispute over whether the Colorado conviction should have been classified as a
15
Class A or B misdemeanor in this state. As noted above, K.S.A. 2011 Supp. 21-6811(e)
directs that, if this state "does not have a comparable offense, the out-of-state conviction
shall be classified as a nonperson crime." And nonperson misdemeanors are not
aggregated.

To reiterate, LaGrange compared some elements of Colorado's third-degree
assault—"with criminal negligence . . . caus[ing] bodily injury to another person . . . by
means of a deadly weapon"—to the elements of a version of Kansas' aggravated
battery—"'recklessly causing bodily harm to another person with a deadly weapon.'"
K.S.A. 1994 Supp. 21-3414(a)(2)(B). But LaGrange's recitation of the Colorado crime's
elements was incomplete. The Colorado statute actually provides three ways in which a
person can commit third-degree assault: (1) "knowingly . . . caus[ing] bodily injury to
another person"; (2) "or recklessly caus[ing] bodily injury to another person"; or (3) "with
criminal negligence the person causes bodily injury to another person by means of a
deadly weapon." Colo. Rev. Stat. § 18-3-204 (2004). The first two ways are comparable
to the Kansas misdemeanor offense of simple battery, defined under K.S.A. 2011 Supp.
21-5413(a)(1) as "[k]nowingly or recklessly causing bodily harm to another person." The
only difference in the two states' statutory language is that Colorado proscribes causing
"bodily injury," while Kansas proscribes causing "bodily harm." We do not require
identical statutory language when comparing out-of-state convictions. See State v.
Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003). In that light, one would be hard-
pressed to quibble with the comparability of the simple battery portion of the Colorado
statute, but we must deal with the entire statute.

With respect to the third way to commit third-degree assault in Colorado (with a
deadly weapon), which LaGrange compared to Kansas' reckless aggravated battery with
a deadly weapon, the panel did not discuss the respective mental states required for each
crime. Apparently, that panel just assumed that Colorado's mens rea of "with criminal
16
negligence" is the equivalent of Kansas' mens rea of "recklessly." That assumption is not
supported by the law of either state.

To begin, the structure of Colo. Rev. Stat. § 18-3-204 (2004) refutes the notion
that Colorado equates criminal negligence with recklessness. If the two concepts were
equivalent, the second phrase of the Colorado statute could be restated as "with
recklessness, to cause bodily injury by means of a deadly weapon." But that would be
redundant; the prior phrase already proscribes "recklessly causing bodily injury to
another person." The only reason for the Colorado Legislature to make a separate
provision applicable to using a deadly weapon with criminal negligence is to make that
dangerous act punishable at the same level but with a less culpable state of mind than
intentionally or recklessly.

Colorado's legislative definitions corroborate that the state does not equate
criminal negligence with recklessness. The definition of "[c]ulpable mental state"
separately lists the two terms, to-wit: "intentionally, or with intent, or knowingly, or
willfully, or recklessly, or with criminal negligence, as these terms are defined in this
section." Colo. Rev. Stat. § 18-1-501(4) (2004). Then, the definitions of the terms in
Colo. Rev. Stat. § 18-1-501 (2004) explain the difference between the mental states:

"(3) . . . A person acts with criminal negligence when, through a gross deviation
from the standard of care that a reasonable person would exercise, he fails to perceive a
substantial and unjustifiable risk that a result will occur or that a circumstance exists.
....
"(8) . . . A person acts recklessly when he consciously disregards a substantial
and unjustifiable risk that a result will occur or that a circumstance exists." (Emphasis
added.)

17
 The Colorado Supreme Court views the difference among mental states as a matter
of degree of culpability. People v. Hall, 999 P.2d 207, 219 (Colo. 2000) ("Although
recklessness is a less culpable mental state than intentionally or knowingly, it involves a
higher level of culpability than criminal negligence."). With respect to the specific
difference between recklessness and criminal negligence, Hall explained:

"Criminal negligence requires that, 'through a gross deviation from the standard
of care that a reasonable person would exercise,' the actor fails to perceive a substantial
and unjustifiable risk that a result will occur or a circumstance exists. § 18-1-501(3); see
also People v. Jones, 193 Colo. 250, 253-54, 565 P.2d 1333, 1335 (1977) (discussing
criminally negligent homicide). An actor is criminally negligent when he should have
been aware of the risk but was not, while recklessness requires that the defendant actually
be aware of the risk but disregard it. See [People v.] Shaw, 646 P.2d [375], 380 [(Colo.
1982)]. Thus, even if she should be, a person who is not actually aware that her conduct
creates a substantial and unjustifiable risk is not acting recklessly." 999 P.2d at 219-20.

Colorado's courts have consistently held that negligence, even in the criminal
context, is characterized by a degree of inaction rather than a conscious disregard. People
v. Shaw, 646 P.2d 375, 380 (Colo. 1982) ("The distinction between acting recklessly and
acting with criminal negligence is the difference between, on the one hand, becoming
aware yet consciously disregarding a substantial and unjustifiable risk of death from one's
conduct, and, on the other, failing to perceive, through a gross deviation from the
reasonable care standard, a substantial and unjustifiable risk that death will result from
one's conduct."); People v. Ramirez, 18 P.3d 822, 828 (Colo. App. 2000) (criminal
negligence is when an actor has failed to become aware of the risk of harm; third-degree
assault not applicable when evidence shows defendant placed a knife to victim's throat
and victim's finger was cut when she pushed the knife away).

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 The Kansas Legislature's definition of recklessness comports with Colorado's
requirement that, to be reckless, the actor must be aware of the risk, to-wit: "A person
acts 'recklessly' or is 'reckless,' when such person consciously disregards a substantial
and unjustifiable risk that circumstances exist or that a result will follow, and such
disregard constitutes a gross deviation from the standard of care which a reasonable
person would exercise in the situation." (Emphasis added.) K.S.A. 2015 Supp.
21-5202(j).

Likewise, Kansas precedent has held that recklessness requires something more
than negligence or carelessness. See Robbins v. City of Wichita, 285 Kan. 455, 470, 172
P.3d 1187 (2007) ("Recklessness is a lesser standard of conduct than intentional conduct
and requires running a risk substantially greater than the risk which makes the conduct
merely negligent or careless."); State v. Remmers, 278 Kan. 598, 601-02, 102 P.3d 433
(2004) (recklessness requires something more than negligence); see also State v.
Hernandez, 40 Kan. App. 2d 525, 527-28, 193 P.3d 915 (2008). Indeed, the holding in
Remmers echoes the Colorado definitions: "'It is the concept of conscious disregard that
distinguishes recklessness from negligence. The negligent actor fails to perceive a risk
that he ought to perceive. The reckless actor perceives or is conscious of the risk, but
disregards it.'" (Emphasis added.) Remmers, 278 Kan. at 601-02 (quoting State v. Larson,
582 N.W.2d 15, 18 [S.D. 1998]).

Granted, prior panels of the Court of Appeals have apparently equated another
state's criminal negligence with recklessness in this state. See State v. Farley, No.
109,655, 2014 WL 5345895, at *8 (Kan. App. 2014) (unpublished opinion), (Missouri
statute, similar to Colorado statute, deemed equivalent to aggravated battery and
therefore a person crime for criminal history purposes), rev. denied 302 Kan. 1014
(2015); State v. Maudlin, No. 104,062, 2011 WL 5143041, at *3 (2011) (unpublished
opinion) (same). But it is the Kansas Legislature that establishes what constitutes a
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criminal act in Kansas, not the courts. See State v. Sexton, 232 Kan. 539, 542-43,
657 P.2d 43 (1983) ("It has been the rule in Kansas that all crimes are established by
legislative act. There are no common law crimes in the state, and there can be no
conviction except for such crimes as are defined by statute.").

Given that our legislature has not criminalized the act of negligently causing
bodily harm or injury to another person, even with a deadly weapon, LaGrange erred in
finding that Colorado's third-degree assault was comparable to Kansas' aggravated
battery. Moreover, there is no Kansas crime that is comparable to the portion of
Colorado's third-degree assault that proscribes negligently causing bodily injury to
another person by means of a deadly weapon. Thus, a comparison of the elements of the
Colorado offense of third-degree assault to the elements of the Kansas offenses of battery
and aggravated battery do not establish a comparability of the statutes as a whole.
Moreover, the State has not asked us to find the Colorado statute to be divisible, nor did
the Court of Appeals explain how to carve out only part of the elements of the out-of-
state conviction. Cf. State v. Dickey, 301 Kan. 1018, 1037, 350 P.3d 1054 (2015)
(adopting Descamps v. United States, 570 U.S. _______, 133 S. Ct. 2276, 186 L. Ed. 2d
438 [2013]) (under modified categorical approach, sentencing court permitted to look at
limited class of documents if predicate crime's statute is divisible). Consequently, given
that Kansas does not have a comparable offense, under either the 2011 or the 2015
version of 21-6811(e), the Colorado convictions for third-degree assault should not have
been used in Rodriguez' criminal history calculation.

Reversed and remanded to the district court for resentencing with a criminal
history score of D.

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