State v. Montes

NOT DESIGNATED FOR PUBLICATION

No. 117,916

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FRANCISCO MONTES, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed August 24, 2108.
Convictions affirmed and sentences vacated and remanded.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., LEBEN, J., and BURGESS, S.J.

PER CURIAM: Francisco Montes, Jr. appeals his conviction for two counts of
felony criminal threat and his sentences on those convictions.

He challenges the convictions based on a claim that the district court's limitation
on his cross-examination of one witness prevented him from fully presenting his defense.
But Montes has not shown that the additional areas he wanted to cover in cross-
examination were relevant to the specific charges against him, and he didn't make a
2

detailed enough explanation to the district court of the evidence he wanted to present. We
therefore find no basis in the trial record to set aside his convictions.

We find merit, though, in one of Montes' claims of sentencing error. The district
court treated a Florida burglary conviction as a prior person offense, which led to a more
severe presumptive sentence than would have otherwise been the case. Under State v.
Wetrich, 307 Kan. 552, Syl. 3, 412 P.3d 984 (2018), the district court erred on this point;
the Florida statute defines burglary more broadly than the comparable Kansas statute
does, so the Florida statute had to be considered a nonperson offense for sentencing
purposes. We therefore vacate Montes' sentence and remand the case for resentencing.

Montes raises some additional claims of error in the trial court, but we have not
found any of those of merit. We will discuss each of those issues later in the opinion.


FACTUAL AND PROCEDURAL BACKGROUND

One day in November 2015, Montes went to COMCARE, a community-mental-
health center in Wichita, because he was having "homicidal tendencies." After arriving at
COMCARE, Montes filled out an intake card saying that he wanted to see a psychiatrist,
and waited in the lobby. The receptionist with whom Montes checked in noted that
Montes was agitated, so Deidra Hall—a program manager for COMCARE's crisis
center—went to talk with Montes about what was going on. That wasn't the first time
Hall and Montes had interacted; he had received services at COMCARE before.

Hall then moved Montes from the lobby to a private meeting room so they could
speak in private about what kind of help Montes needed that day. At trial, Hall said
Montes identified his main issue as a need for food. Montes, on the other hand, said he
went to COMCARE because he was homicidal and "needed to be refrained from the
3

community." Although Montes and Hall disagree about the reason Montes gave Hall for
being there, neither party disputes that Montes became agitated at some point during their
discussion.

Hall described how she and Montes were sitting about ten feet apart from each
other, but when Montes got upset he moved towards Hall and stood up with his hands
over her. She said he then yelled, "I'm going to fuck you up, I'm going to fucking kill
you, bitch" at Hall. Since Montes' arms were in the air, Hall said she "went under his
arms and left the room."

Montes denied saying anything like that to Hall, but he agreed that she left the
room at some point during their interaction.

Hall explained that she was afraid Montes was going to hurt her, so she told the
receptionist to call 911. Tisha Garland—another COMCARE program manager—went
out front to watch Montes. Hall then took over the 911 call. Hall told the jury that while
she was on the phone Montes "was continuing to yell, threatening that he was going to
kill everybody in the building."

Garland told the jury that Montes' "level of agitation was so intense that [she]
immediately decided to go and get [the COMCARE] director, Jason Scheck, who was in
his office." Scheck then came to the lobby. He said he observed Montes and then decided
to try to speak with him. He and Garland both described how they tried to engage Montes
to deescalate the situation to protect the staff and other clients. Their efforts failed, and
Scheck said Montes became more agitated. Scheck said Montes then told him he was going
to break Scheck's neck.

When it was clear that Montes wasn't going to calm down, someone at COMCARE
finally activated the panic alarm system to alert law enforcement of the emergency. An
4

employee also contacted security personnel at the Sedgwick County courthouse, right
across the street from COMCARE, to ask for help.

Alan Bennett, a deputy with the Sedgwick County Sheriff's Department, was one
of the law-enforcement officers who responded. He told the jury that there were already
two officers from the Wichita Police Department at COMCARE by the time he arrived.
Bennett personally observed Montes' behavior, which he described as "[e]xtremely
agitated." Then he arrested Montes and transported him to the county jail.

The State charged Montes with two counts of criminal threat. At trial, Montes
testified in his own defense. He told the jury that he didn't specifically threaten any of
COMCARE's employees that day, but that he "made a homicidal threat to the
community." On cross-examination, when the State asked Montes to clarify what he
meant by a homicidal thought, he replied, "Where you tend to want to hurt or commit
bodily harm." Montes said that he had wanted to kill someone that day.

The jury found Montes guilty of both counts of criminal threat and the district
court sentenced him to 15 months in prison. Montes then appealed to our court.

ANALYSIS

I. The District Court Didn't Deny Montes His Right to Present a Complete Defense When
It Limited the Scope of Hall's Cross-Examination.

Montes' first argument is that the district court improperly limited his cross-
examination of Hall. Montes contends that this prevented him from presenting a complete
defense to the charge because Hall's testimony would have been relevant to whether he
had the required mental state to be guilty of criminal threat. Montes says this limitation
5

resulted in a violation of his constitutional rights to present a full defense and have a fair
trial.

This court reviews a trial court's decision to limit the scope of a witness' cross-
examination for an abuse of discretion. State v. Wells, 296 Kan. 65, 86, 290 P.3d 590
(2012). A court abuses its discretion if its decision is based on an error of fact or law, or
if no reasonable person could agree with the decision. State v. Mosher, 299 Kan. 1, 3, 319
P.3d 1253 (2014).

To understand Montes' argument, we must place it in the context of what the State
had to prove at trial. The State charged Montes with making a criminal threat, which
K.S.A. 2015 Supp. 21-5415(a)(1) defines as "any threat to . . . [c]ommit violence
communicated with intent to place another in fear . . . or in reckless disregard of the risk
of causing such fear." The State alleged that Montes made specific threats against Hall
and Scheck in reckless disregard of the risk of causing them to be in fear.

Montes says that by sustaining the State's objection to Hall's cross-examination, the
court prevented him from presenting a full defense because his "history of mental health
treatment at COMCARE and his diagnoses were relevant to show that he did not have the
reckless mental state" required for a criminal-threat conviction. Essentially, he contends that
proof of Hall's and Scheck's knowledge of his past interactions at COMCARE should have
led them not to be fearful of him. As Montes put the point in his appellate brief: "If Mr.
Montes had a history of receiving treatment at COMCARE for similar 'agitated' behavior, he
would have believed the staff were familiar with his behavior and that there was not a risk of
placing the employees in fear when he made his general threat to the public."

The State first argues that we shouldn't reach the issues on its merits because Montes
didn't make an adequate proffer of evidence as required by K.S.A. 60-405. Under that statute,
a judgment won't be reversed because of erroneously excluded evidence unless the record
6

shows "that the proponent of the evidence either made known the substance of the evidence
in a form and by a method approved by the judge, or indicated the substance of the expected
evidence by questions indicating the desired answers." K.S.A. 60-405. Montes, on the other
hand, suggests that "defense counsel proffered that he sought to cross-examine Hall about
Mr. Montes mental health history at COMCARE and his 'mental health issues.'"

At trial, Montes' attorney asked the court: "So you're suggesting . . . that his mental
health issues in general [were] not relevant to this trial?" The court responded that the cross-
examination wasn't relevant "unless I'm missing something." Then Montes' attorney
explained that the evidence was relevant because people go to COMCARE "because
[they're] having some kind of mental health issues." Since Montes had mental-health issues
and he went to COMCARE "to try to get help, it would be relevant as to what his issues
were."

As the district court pointed out, however, Montes' attorney didn't say how Montes'
mental-health issues "tie[d] in to whether or not an offense [had] occurred." Nor did Montes's
attorney say anything when the court pressed for more information about whether "there's
some connection there that I'm missing [that] will relate to this element of the offense or this
defense." Montes simply didn't explain what Montes' mental health had to do with the
charged offenses or his defense. Using the language from K.S.A. 60-405, Montes didn't
"indicate[] the substance of the expected evidence." At the outset, then, we agree with the
State that because of Montes' inadequate proffer, he has not preserved this issue for appellate
review.

Even if we considered Montes' limited proffer of evidence sufficient, the district court
still was within its discretion to limit the inquiry on the details of his past interactions at
COMCARE. To consider that, we must compare the rules for determining what's relevant
evidence with the specific rationale Montes presents on appeal for the admission of this
evidence.
7

In general, all relevant evidence is admissible unless it is otherwise excluded by
another evidentiary rule, constitutional provision, or court decision. State v. Williams, 303
Kan. 585, 592-93, 363 P.3d 1101 (2016). Evidence is relevant if it tends to prove a
significant fact—in legal terms, it must be both material and probative. K.S.A. 60-
401(b); State v. Huddleston, 298 Kan. 941, 959, 318 P.3d 140 (2014). Evidence is material
when it establishes a fact that is at issue; it is probative when it logically tends to prove the
material fact. State v. Coones, 301 Kan. 64, 78, 339 P.3d 375 (2014).

Montes says Hall's cross-examination was relevant to his theory of defense that he
didn't have the requisite mental state to commit these crimes. But he's arguing about the
intent related to the general threat to the public that he admits he made—not the specific
threats to Hall and Scheck. As we already noted, he contends on appeal that proof of his past
interactions would have shown that "he would have believed the staff were familiar with his
behavior and that there was not a risk of placing the employees in fear when he made his
general threat to the public." (Emphasis added.)

In context, then, Montes argues only that he didn't have the requisite mental state for
criminal threat when he threatened the general public, but that's not what he was charged
with. The State charged him with two counts of criminal threat because of his specific threats
towards Hall and Scheck. And Montes doesn't explain how Hall's testimony would have
proved that he didn't act in reckless disregard of the risk of placing Scheck and Hall in fear
when he individually threatened them. The testimony Montes sought from Hall during the
cross-examination would have been neither material nor probative, and the court properly
limited the cross-examination because Hall's testimony wouldn't have been relevant.

Finally, even if we were to find that the district court had improperly limited Hall's
cross-examination, we agree with the State's final argument that any error would be
harmless. An error is harmless if we conclude beyond a reasonable doubt that the error didn't
8

change the trial's outcome. See State v. Andrew, 301 Kan. 36, 46-47, 340 P.3d 476 (2014)
(using the harmless-error standard for errors involving a defendant's theory of defense).

At trial, both Scheck and Hall testified that Montes' threats towards them made them
afraid. And as we will make clear in our discussion of the next issue on appeal, there was no
potential jury confusion about what Montes was charged with—the specific threats against
Hall and Scheck, not some generic threat to the general public. Montes doesn't explain how
evidence of his treatment history would have changed the jury's mind when it considered
those specific threats. Thus, any error in limiting Hall's cross-examination would have been
harmless.

II. The District Court Didn't Err by Excluding a Unanimity Instruction.

Montes' next argument is that the district court erred by failing to tell the jury that it
had to agree unanimously on which act was the basis for a conviction—also known as giving
a unanimity instruction. Montes says a unanimity instruction was required because, in
addition to the evidence showing that he threatened Hall and Scheck, the State also presented
evidence that he made a general threat against the public. He claims the jury could have
based its guilty verdicts either on that additional threat against the public or on the alleged
threats specifically against Hall and against Scheck.

When the State relies on multiple acts to support one charge, either the trial court
must give a unanimity instruction to make sure all jurors agree on which of the possible
criminal acts is the basis for its verdict or the State must convey to the jury the specific
acts it relies on to support the charge. See State v. Atkins, 298 Kan. 592, 618, 315 P.3d 868
(2014).

There's no dispute that this case involved multiple acts. The State charged Montes
with two counts of criminal threat—one toward Hall and the other toward Scheck. But in
9

addition to those two threats, Montes says the State also presented evidence of a third threat
that could have supported another conviction. He points to Hall's testimony, during which
she described how, after threatening her, Montes went to the lobby and "threaten[ed] that he
was going to kill everybody in the building." Under K.S.A. 2015 Supp. 21-5415(a)(1), a
person is guilty of criminal threat if he threatened to "commit violence with intent to place
another in fear . . . ." (Emphasis added.) So, Montes argues, the threat to kill everybody in
the building also could have been a criminal threat.

Even if Montes' "general threat to kill the public" was another act in a multiple-acts
scenario, the district court didn't err by excluding a unanimity instruction because the State
told the jury which of Montes' acts served as the basis for each charge. During its opening
statement, the State told the jury that Montes specifically threatened Hall because he was
angry with her. It described how Montes told Hall: "I'm going to F you up [and] I'm gonna
F'ing kill you, bitch." Then it explained how Montes threatened Scheck: "Mr. Montes
continues to become agitated . . . . And while he's still angry and he's still aggressive, he says
. . . as he basically charges at [Scheck] and gets in his face, I'm gonna kill you and I'm gonna
snap your neck." The State wrapped up its opening statement by telling the jury that the case
was about Montes' threats toward Hall and Scheck.

During its closing remarks, the State tied each of the counts charging criminal threats
to specific statements made to Hall and Scheck. The prosecutor first explained how the
evidence proved Montes threatened Hall. After reminding them that Montes' told Hall, "I'm
gonna fuck you up, [and] I'm going to fucking kill you, bitch," the prosecutor then said, "I
would submit he's guilty on count one of criminal threat." When discussing count two, the
State talked only about Montes' interaction with Scheck, reminding the jury that the
underlying acts for count two were Montes' threats toward Scheck that he was going to kill
Scheck and break Scheck's neck.

10

The State appropriately designated which acts the jury needed to consider for each
charge. Thus, the district court didn't err by failing to include a unanimity instruction.

III. The District Court Erred by Classifying Montes' 1995 Florida Burglary Conviction
as a Person Felony.

Montes' third claim of error is that the district court made a mistake in determining
his criminal-history score, which plays an important part in determining the presumptive
sentence under our state's sentencing guidelines. The district court determined Montes'
criminal-history score was a B, based partly on the court's classification of Montes' 1995
burglary conviction from Florida as a person felony. But Montes contends that the court
should have classified the Florida conviction as a nonperson felony. In that case, Montes'
criminal-history score would have been a C, which would have made Montes'
presumptive sentence probation, not prison. See K.S.A. 2015 Supp. 21-6804(a). Whether
the district court properly classified Montes' prior conviction is a question of law over
which we have unlimited review. State v. O'Connor, 299 Kan. 819, 822, 326 P.3d 1064
(2014).

Under the Kansas Sentencing Guidelines Act, a defendant's sentence is based on
the severity of the current offense and the defendant's criminal-history score. See K.S.A.
2015 Supp. 21-6804(a), K.S.A. 2015 Supp. 21-6805(a). The severity level of the current
offense is set by statute. The criminal-history score is based on the defendant's prior
convictions, including those from other states. See K.S.A. 2015 Supp. 21-6809; K.S.A.
2015 Supp. 21-6811(e).

The district court follows a two-step process when categorizing a defendant's prior
conviction for calculating the defendant's criminal-history score. First, the court determines
whether the prior conviction should be classified as a felony or a misdemeanor. K.S.A.
2015 Supp. 21-6811(e)(2). There's no dispute about whether Montes' 1995 Florida
11

conviction was a felony under Fla. Stat. § 810.02 (1995), so the next step is to classify the
defendant's out-of-state conviction as a person or nonperson offense. To do this, the district
court compares the out-of-state offense to a comparable one in effect in Kansas on the date
the defendant committed the current crime of conviction. K.S.A. 2015 Supp. 21-
6811(e)(3). If there's no comparable offense in Kansas, the conviction must be classified as
a nonperson crime. K.S.A. 2015 Supp. 21-6811(e)(3).

When it ruled, the district court had several decisions from our court to rely on that
had interpreted "comparable" Kansas offenses as those prohibiting similar conduct as the
out-of-state offense—the elements of both crimes didn't have to be identical. See, e.g.,
State v. Moore, 52 Kan. App. 2d 799, 813-14, 377 P.3d 1162 (2016); State v. Riolo, 50
Kan. App. 2d 351, 353, 330 P.3d 1120 (2014); State v. Barajas, 43 Kan. App. 2d 639,
643, 230 P.3d 784, 788 (2010). But in March 2018, our Supreme Court clarified that "for
an out-of-state conviction to be comparable to an offense in Kansas, the elements of the out-
of-state crime must be identical to or narrower than the elements of the comparable Kansas
crime." State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018).

If we apply Wetrich here, Montes is correct that the district court should have scored
the Florida conviction as a nonperson offense. The Florida statute was broader than the
Kansas burglary statute. In Florida, a burglary meant entering or remaining in a structure
with the intent to commit any offense in that structure. Fla. Stat. § 810.02(1) (1995). In
Kansas, the definition was more limited—the intent had to be to commit a felony, a theft, or
a sexually motivated crime there. K.S.A. 2014 Supp. 21-5807.

The State argues that Wetrich doesn't control here because of a 2017 amendment
to K.S.A. 22-3504 that added the sentence, "A sentence is not an 'illegal sentence'
because of a change in the law that occurs after the sentence is pronounced." K.S.A. 2017
Supp. 22-3504(3). The State contends that the Supreme Court's ruling in Wetrich was a
change in the law after Montes’ sentencing, so the new identical-to-or-narrower-than rule
12

doesn't apply to Montes' sentence. But the Wetrich court didn't change the law. Instead, it
simply clarified the meaning of "comparable offense" in K.S.A. 21-6811: "We can
resolve the issue presented here on the basis of statutory interpretation [of K.S.A. 21-
6811]." Wetrich, 307 Kan. at 558. The statute didn't change, and the Wetrich court simply
interpreted the statute. See State v. Thomas, 53 Kan. App. 2d 15, 24, 383 P.3d 152 (2016),
rev. denied 306 Kan. 1330 (2017); State v. Smith, No. 117,237, 2018 WL 2271412, at *4
(Kan. App. 2018) (unpublished opinion). We therefore apply Wetrich and conclude that the
trial court erred when it classified the Florida burglary conviction as a person offense.

The elements of the Montes' Florida crime are broader than the elements of the
Kansas crime, so Kansas' and Florida's burglary offenses aren't comparable. See Wetrich,
307 Kan. 552, Syl. ¶ 3 ("[T]he elements of the out-of-state crime cannot be broader than
the elements of the Kansas crime.") Given Wetrich, Montes' criminal-history score should
have been C instead of B. We will therefore vacate Montes' sentence and remand the case
for resentencing.

IV. The District Court Didn't Err by Considering Montes' 1995 Florida Convictions
When Calculating His Criminal-History Score.

As Montes' final claim, he argues that the district court couldn't consider any of his
Florida convictions at all since the State didn't present evidence of it to a jury. Montes
says the failure to do so deprived him of his Sixth Amendment right to a jury and his
Fourteenth Amendment right to due process, as explained in Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Montes' presentencing-investigation report shows that he has 18 prior convictions—
the first six are out-of-state convictions. Before sentencing, Montes objected to the court
using all six of those convictions to figure out his criminal-history score. The court granted
Montes' motion for four of the six entries and only relied on two of Montes' out-of-state
13

convictions for criminal-history scoring: his 1995 convictions for burglary and battery on a
law-enforcement officer.

Our Supreme Court rejected the same argument Montes is making here in State v.
Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). The Ivory court explained that "[t]he [Kansas
Sentencing Guidelines Act] builds criminal history into the calculation of a presumptive
sentence, rather than using criminal history as an enhancement." And the Apprendi court
explicitly carved out an exception for courts to use a defendant's prior conviction to
increase that defendant's penalty. 273 Kan. at 46.

We are of course duty bound to follow Kansas Supreme Court precedent unless
the court somehow suggests that it is moving away from its earlier holding. State v.
Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). No such indication exists here,
see State v. Sullivan, 307 Kan. 697, 708, 414 P.3d 737 (2018), so the district court didn't
err when it considered Montes' prior convictions without requiring the State to prove
those convictions beyond a reasonable doubt.

We vacate Montes' sentence and remand the case for resentencing. In all other
respects, the district court's judgment is affirmed.