State v. Rodriguez

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NOT DESIGNATED FOR PUBLICATION

No. 117,297


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANGEL RODRIGUEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Seward District Court; CLINT B. PETERSON, judge. Opinion filed April 27, 2018.
Conviction affirmed, sentence vacated, and remanded with directions.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., GREEN, J., and HEBERT, S.J.

PER CURIAM: Angel Rodriguez argues that his sentence is illegal because the
district court erred when it classified his prior New Jersey conviction for "assault with
intent to rape" under N.J. Stat. Ann. § 2A:90-2 as a person felony for criminal history
purposes. He further argues that the State breached its plea agreement with him during
sentencing. For reasons set out below, both of Rodriguez' arguments are persuasive.
Accordingly, this court will vacate Rodriguez' sentence and remand for resentencing with
the following directions: (1) that his prior New Jersey conviction for assault with intent
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to rape be classified as a nonperson crime for criminal history purposes; and (2) that the
State comply with the terms of his plea agreement.

In August 2008, the State charged Rodriguez with 69 counts of sexual exploitation
of a child, each severity level 5 person felonies in violation of K.S.A. 21-3516, for
alleged acts he took between 2004 and 2006. Following a preliminary hearing, the district
court bound Rodriguez over for trial on 53 of the 69 charges.

In August 2009, the district court held a plea hearing. At this hearing, the
prosecutor recited the terms of the plea agreement. He stated that under the plea
agreement, the State would dismiss all but one of the 53 counts of sexual exploitation of a
child with prejudice in exchange for Rodriguez' Alford plea to the single count of sexual
exploitation of a child. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970). The prosecutor also stated the following were terms of the plea agreement:
"Just no departures, Your Honor. It's contemplated, but again the parties know that we
have no control or bearing on that, but he is probably a (A) criminal history and be
sentenced in column A at the time of sentencing." Rodriguez' attorney then added that
under the plea agreement, the State also agreed to recommend that Rodriguez serve the
standard presumptive sentence under the Kansas Sentencing Guidelines Act (KSGA).
The prosecutor concurred that this was a term of the plea agreement.

After reciting these plea agreement terms, the district court accepted Rodriguez'
Alford plea. The district court sentenced Rodriguez to 130 months' imprisonment
followed by 24 months' postrelease supervision based upon his criminal history score of
A.

About five years later in October 2014, Rodriguez moved pro se to correct illegal
sentence. The district court denied Rodriguez' motion, and Rodriguez appealed to this
court. In State v. Rodriguez, No. 114,264, 2016 WL 3961375, at *4-6 (Kan. App. 2016)
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(unpublished opinion), this court vacated Rodriguez' sentence and remanded for
resentencing with directions that his 1997 Nevada burglary be classified as a nonperson
felony because consideration of this conviction as a person felony violated Rodriguez'
rights as explained in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000), and Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed.
2d 438 (2013).

Upon remand, with his 1997 Nevada burglary classified as a nonperson felony,
Rodriguez' new criminal history score was B. At sentencing, the State requested that the
district court impose the aggravated presumptive sentence. Rodriguez objected, asserting
that under his plea agreement with the State, the State agreed to recommend the standard
presumptive sentence. The State responded that the plea agreement was no longer
binding because it was contingent upon Rodriguez having a criminal history score of A.
The district court reviewed Rodriguez' plea hearing transcript and found that Rodriguez
having a criminal history score of A was part of the plea agreement. Thus, the district
court ruled that the State was no longer bound by the terms of the plea agreement. The
district court then imposed the aggravated presumptive sentence of 128 months'
imprisonment followed by 24 months' postrelease supervision. Included within
Rodriguez' criminal history was his 1977 New Jersey conviction for "assault with intent
to rape" under N.J. Stat. Ann. § 2A:90-2.

Is Rodriguez' Sentence Illegal?

Rodriguez' first argument, which he concedes that he is raising for the first time on
appeal, is that the district court erred when it used his 1977 New Jersey assault with
intent to rape conviction under N.J. Stat. Ann. § 2A:90-2 to enhance his sexual
exploitation of a child sentence. Rodriguez makes two arguments why his sentence is
illegal. First, he argues that the district court should not have counted his assault with
intent to rape conviction as a felony based upon the plain language of K.S.A. 21-4711(e).
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Second, he argues that the district court should not have counted his assault with intent to
rape conviction as a person crime because counting it as a person crime violates his rights
under Apprendi and Descamps.

Pointing to the law of the case doctrine, the State first responds that neither of
Rodriguez' arguments are properly before this court. The State next responds that even if
Rodriguez' arguments were properly before this court, they fail for the following reasons:
(1) because under New Jersey law, his conviction for assault with intent to rape
constitutes a felony; (2) because under Kansas law, his conviction for assault with intent
to rape constitutes a person crime.

Standard of Review

Appellate courts have unlimited review over whether a sentence is illegal under
K.S.A. 22-3504. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). To the extent
Rodriguez' argument involves statutory interpretation, appellate courts also have
unlimited review over statutory interpretation. State v. Collins, 303 Kan. 472, 473-74,
362 P.3d 1098 (2015).

The most fundamental rule of statutory interpretation is that the intent of the
Legislature, as determined by the plain language of a statute, governs. State v. Jordan,
303 Kan. 1017, 1019, 370 P.3d 417 (2016). This means that while engaging in statutory
interpretation, ordinary words must be given their ordinary meanings. State v. Barlow,
303 Kan. 804, 813, 368 P.3d 331 (2016). Statutes should not be so read as to add that
which is not readily found therein or to read out what as a matter of ordinary English
language is in it. Barlow, 303 Kan. at 813. Additionally, courts should not turn to the
canons of statutory construction or legislative history to ascertain legislative intent if the
language of the statute is plain and unambiguous. 303 Kan. at 1019.

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Preservation

Under K.S.A. 22-3504(1) courts may correct an illegal sentence at any time. In
State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015), our Supreme Court held that
defendants' challenges to the classification of prior crimes for criminal history purposes
constituted challenges to the legality of their sentences under K.S.A. 22-3504(1). Thus,
defendants alleging criminal history score errors may do so for the first time on appeal.

In his brief, Rodriguez relies on Dickey while arguing that he can raise his
sentencing arguments for the first time on appeal. Although at one point in its brief the
State recognizes that Rodriguez is challenging the legality of his sentence, the State still
argues that Rodriguez' argument is barred under the law of the case doctrine. According
to the State, Rodriguez' failure to raise his arguments concerning his New Jersey assault
with intent to rape conviction in his prior appeal to this court means that this court should
not now consider his arguments.

Yet, the law of the case doctrine is "'a discretionary policy which expresses the
practice of the courts generally to refuse to reopen a matter already decided, without
limiting their power to do so.' [Citation omitted.]" State v. Collier, 263 Kan. 629, 631,
952 P.2d 1326 (1998). Although the State refers to the law of the case doctrine, the law
that the State is actually citing to concerns the doctrine of res judicata. In fact, the case
the State relies on in making its law of the case argument—State v. Neer, 247 Kan. 137,
140-41, 795 P.2d 362 (1990)—did not address the law of the case doctrine. Instead, the
case addressed the doctrine of res judicata. As a result, the State's argument is truly a res
judicata argument.

Concerning the doctrine of res judicata, "[u]nder Kansas law, where an appeal is
taken from the sentence imposed and/or a conviction, the judgment of the reviewing court
is res judicata as to all issues actually raised, and those issues that could have been
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presented, but were not presented, are deemed waived." Neer, 247 Kan. at 140-41. Even
so, "[t]he doctrine of res judicata or waiver does not apply to bar a claim when that claim,
if true, would render a sentence illegal and the claim has not been previously addressed
on its merits." State v. Martin, 52 Kan. App. 2d 474, Syl. ¶ 4, 369 P.3d 959 (2016), rev.
denied 305 Kan. 1256 (2017). This is because doing so would undermine the plain
language of K.S.A. 22-3504(1), which allows courts to correct an illegal sentence at any
time. 52 Kan. App. 2d 474, Syl. ¶ 5. Thus, the State's contention that Rodriguez'
sentencing arguments are somehow barred by either the law of the case or res judicata
doctrines are incorrect. As a result, we will consider the underlying merits of Rodriguez'
arguments.

Relevant Law

To fully address Rodriguez' and the State's arguments, it is first important to
address the relevant law on classifying a defendant's prior criminal convictions for
criminal history purposes.

When Rodriguez committed his crimes, the relevant statute on calculating criminal
history was K.S.A. 21-4711. See also K.S.A. 21-5103(d). K.S.A. 21-4711(e) states:

"Out-of-state convictions . . . will 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."

According to his New Jersey journal entry of judgment, Rodriguez was
specifically convicted of assault with intent to rape under N.J. Stat. Ann. § 2A:90-2,
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receiving a 360-day sentence. Although Rodriguez was convicted of assault with intent to
rape, N.J. Stat. Ann. § 2A:90-2 actually criminalizes assaulting another with the intent to
commit a variety of crimes, with one of those crimes being rape. In its entirety, N.J. Stat.
Ann. § 2A:90-2 states:

"Any person who commits an assault with intent to kill, or to commit burglary,
kidnapping, rape, robbery or sodomy, or to carnally abuse a female under the age of 16,
with or without her consent, is guilty of a high misdemeanor, and shall be punished by a
fine of not more than $3000, or by imprisonment for not more than 12 years, or both."

Of significance, when his convictions occurred, New Jersey classified all crimes except
treason and murder as either misdemeanors or high misdemeanors. See State v. Doyle, 42
N.J. 334, 348, 200 A.2d 606 (1964).

In making its arguments on appeal, the State relies heavily on Doyle where the
New Jersey Supreme Court considered whether a high misdemeanor constituted a
common-law felony for which the police could arrest a defendant without a warrant. The
Doyle court held that police may arrest a person based upon probable cause alone if they
are pursuing that person for a crime that carries a punishment of over a year. 42 N.J. at
349.

Yet, in Rodriguez' reply brief, the cases that he primarily relies on—State v.
Horselooking, 54 Kan. App. 2d 343, 400 P.3d 189 (2017), rev. granted (December 22,
2017), and State v. Smith, No. 116,586, 2017 WL 4558253 (Kan. App. 2017)
(unpublished opinion)—were issued after he filed his original appellate brief. In
Horselooking, Horselooking argued that the district court erred when it considered his
Kickapoo tribal conviction for burglary as a felony for criminal history purposes; the
Kickapoo criminal code did not designate the crime as either a misdemeanor or a felony.
The State argued this court should affirm Horselooking's sentence based partly upon our
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Supreme Court's earlier decision in State v. Hernandez, 24 Kan. App. 2d 285, Syl. ¶ 2,
944 P.2d 188 (1997), and State v. Lackey, 45 Kan. App. 2d 257, 246 P.3d 998 (2011).

In Hernandez, this court held that if the convicting jurisdiction did not define
crimes as felonies or misdemeanors, then the sentencing court will determine if the
defendant's prior crime constituted a felony by looking to the most comparable Kansas
crime. 24 Kan. App. 2d at 288-89. The Hernandez court reached this holding because it
concluded that this was the Legislature's intent when "the pertinent parts of the KSGA
[were] construed in pari materia." 24 Kan. App. 2d at 289. The Lackey court reached the
same decision, relying on the lack of legislative amendments to the statute since
Hernandez. 45 Kan. App. 2d at 264-65.

Nevertheless, the Horselooking court disagreed with the Hernandez and Lackey
courts' analysis and holdings. First, the Horselooking court, which was analyzing the
recodified version of K.S.A. 21-4711(e), noted that although "[t]he KSGA expressly
provide[d] how a sentencing court shall classify an out-of-state conviction if the crime
[was] a felony or a misdemeanor in the convicting jurisdiction," "there [was] no explicit
language in the KSGA explaining how a court [was] to classify an out-of-state conviction
as either a felony or a misdemeanor when the convicting jurisdiction does not distinguish
between the two." 54 Kan. App. 2d at 347. Second, the Horselooking court recited and
then applied the rules of statutory interpretation. The Horselooking court explained:
"[T]he Kansas sentencing statute [was] not ambiguous or unclear; instead, it lack[ed] any
provision to explain how a court [was] to classify an out-of-state conviction as a felony or
a misdemeanor when the convicting jurisdiction does not designate crimes as felonies or
misdemeanors." 54 Kan. App. 2d at 350.

For this reason, the Horselooking court held that it would "refrain from
speculating about the legislature's intent and . . . not insert a provision into the statute that
the legislature failed to include—which [was] exactly what the panel of this court did in
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Hernandez." 54 Kan. App. 2d at 350. The Horselooking court noted that our Supreme
Court in State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865
(2016), had recently addressed a different KSGA statutory interpretation issue and
considered what courts should do in "silence gap" situations. That is, situations where the
statute contains plain and unambiguous language but the statute still does not provide
guidance on what to do in the situation at issue. Although the Keel court was able to
determine the Legislature's intent by "the overall design and structure of the KSGA," the
Keel court explained that the "default position" in "silence gap" situations was to "defer
to the legislature to act to fill such a gap." 302 Kan. at 573-74. The Horselooking court
further rejected the Lackey court's analysis because what the plain language of a statute
reveals is the most important aspect of statutory interpretation; more important than
legislative acquiescence, which may not always actually indicate the Legislature's intent.
54 Kan. App. 2d 352-53.

Since issuing the Horselooking decision, another panel of this court has adopted
the Horselooking court's analysis when considering the Missouri ordinance for
endangering the welfare of a child. In Smith, the district court classified Smith's prior
conviction for endangering the welfare of a child to be a misdemeanor for criminal
history purposes even though Missouri ordinances are not classified as misdemeanors or
felonies but are instead "quasi-criminal in nature." 2017 WL 4558253, at *1-2. Smith
appealed, arguing that the district court should not have included her municipal ordinance
violation in her criminal history. The Smith court agreed, holding the following:

"Because the KSGA is silent on how to classify an out-of-state ordinance violation when
the convicting jurisdiction does not consider an ordinance violation to be a crime, then
under the rationale of Horselooking and the rule of lenity, the district court erred in
classifying Smith's Missouri ordinance violation of endangering the welfare of a child as
a person misdemeanor and aggregating that ordinance violation with the two Johnson
County, Kansas, person misdemeanor convictions to form one person felony." 2017 WL
4558253, at *5.
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Felony Classification Correct

Turning our focus back to this case, we note that it is important to point out that
this case is distinguishable from Horselooking and Smith because unlike the Kickapoo
tribal code and Missouri ordinances at issue in those cases, New Jersey actually classifies
crimes as misdemeanors—misdemeanors and high misdemeanors. Thus, Rodriguez
argues that this court could simply hold that based upon the plain language of K.S.A. 21-
4711(e), his assault with intent to rape conviction should have been classified as a
misdemeanor for criminal history purposes. This is because New Jersey made assault
with intent to rape a high misdemeanor and K.S.A. 21-4711(e) states that "[a]n out of-
state crime will be classified as either a felony or a misdemeanor according to the
convicting jurisdiction."

The State, however, argues that although New Jersey's N.J. Stat. Ann. § 2A:90-2
statute listed the crime of assault with intent to rape as a high misdemeanor, the New
Jersey Supreme Court adopted a method for determining whether a misdemeanor or high
misdemeanor constitutes a felony offense under the common law, that is, the Doyle
felony test. Accordingly, the State argues that despite the fact New Jersey's criminal code
does not include the misdemeanor-felony criminal classification scheme, this court
knows whether New Jersey would classify a misdemeanor or high misdemeanor as a
common-law felony based on the Doyle felony test. The State concludes that because the
maximum punishment for Rodriguez' assault with intent to rape conviction was 12 years
in prison, his crime constitutes a felony under the Doyle felony test; in turn, his crime
constitutes a felony for Kansas criminal history purposes.

Indeed, the Doyle court seemed to believe that the New Jersey Legislature had left
the construction of the words of the State's criminal code to the courts. For example, the
Doyle court explained: "Criminal codes in New Jersey have not utilized the felony-
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misdemeanor nomenclature or classification of the English common law . . . [A]nd the
absence of a specific 'felony' category in our crimes act create a necessity for a decision
with respect to the kind of offense which will justify a police officer in arresting without
a warrant." 42 N.J. at 348.

As stated earlier, we note that the dispute in Doyle centered on whether a high
misdemeanor constituted a common-law felony which would allow a police officer to
arrest a person without a warrant. On the other hand, the present dispute centers on
whether Rodriguez' New Jersey conviction of assault with intent to rape—charged as a
high misdemeanor—should be treated as a felony. This court, however, notes that several
courts have adopted the Doyle felony test to determine whether a defendant's New Jersey
conviction could be counted as a felony for sentencing enhancement purposes under their
respective statutes. See United States v. Brown, 937 F.2d 68, 70 (2d Cir. 1991); State v.
Gillison, 766 N.W.2d 649 (Iowa Ct. App. 2009); State v. Hogan, 234 N.C. App. 218,
227, 758 S.E.2d 465 (2014). This court adopts the Doyle test for the purpose of this issue.

As a result, we conclude that the district court properly classified Rodriguez'
conviction for assault with intent to rape as a felony.

Person Classification Errant

Nevertheless, the district court's ruling to classify Rodriguez' assault with intent to
rape conviction as a person crime was errant.

This court's analysis must first begin by recognizing that Rodriguez' arguments
concerning the application of the categorical approach and modified categorical approach
outlined in Descamps are off the mark. In Descamps, the United States Supreme Court
held that sentencing courts must use the categorical approach and modified categorical
approach when considering facts that go beyond the existence of the defendant's prior
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conviction that will enhance the defendant's sentence or else violate Apprendi. 570 U.S.
at 260-64.

Yet, under K.S.A. 21-4711(e), courts first look to the elements of the defendant's
prior out-of-state crime and see if that crime is comparable to any Kansas offense. If it is
not comparable to any Kansas offense, then the defendant's prior crime must be classified
as a nonperson crime for criminal history purposes. Although a present dispute centers on
whether courts must apply the rules of Apprendi and Descamps when the comparable
offense under the Kansas criminal code criminalizes only some conduct as person crimes,
there is no dispute that the rules of Apprendi and Descamps are inapplicable (1) when the
comparable Kansas offense criminalizes all conduct as either person or nonperson crimes
or (2) when the out-of-state conviction has no comparable Kansas offense. See State v.
Fahnert, 54 Kan. App. 2d 45, Syl. ¶ 3, 396 P.3d 723 (2017); State v. Buell, 52 Kan. App.
2d 818, 829, 377 P.3d 1174 (2016), rev'd on other grounds 307 Kan. ___, 412 P.3d 1004
(2018). Moreover, because the State's argument is that N.J. Stat. Ann. § 2A:90-2 is
comparable to either the Kansas offense of aggravated assault or attempted rape—both
disjuncts are always person crimes, and Rodriguez' argument is that there is no
comparable Kansas offense—this court need not engage in Apprendi and Descamps
analysis to resolve this issue.

Next, turning our focus to what constitutes a comparable offense, this court has
previously explained: "Under K.S.A. 21-4711(e), a comparable offense need not contain
elements identical to those of the out-of-state crime, but must be similar in nature and
cover a similar type of criminal conduct." State v. Barajas, 43 Kan. App. 2d 639, Syl. ¶ 2,
230 P.3d 784 (2010). In Barajas, for example, this court found that California's offense
of DUI causing bodily injury was not comparable to Kansas' offense of aggravated
battery because (1) the crimes had different culpable mental states and (2) the California
DUI law had an element the Kansas aggravated battery law did not have, which was "that
the defendant drive while legally intoxicated and concurrently neglect to perform a duty
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required by law." 43 Kan. App. 2d 639, Syl. ¶ 4. Therefore, the Barajas court vacated
Barajas' sentence, remanding to the district court with orders that Barajas' California DUI
be classified as a nonperson crime for criminal history purposes. 43 Kan. App. 2d at 648.
The Barajas precedent establishes that this court's inquiry must focus on whether N.J.
Stat. Ann. § 2A:90-2 punishes the same general conduct as some Kansas offense. See
also State v. Rodriguez, 305 Kan. 1139, 1154, 390 P.3d 903 (2017) (holding the Colorado
crime of misdemeanor third-degree assault was not comparable to Kansas' aggravated
battery given that the two crimes had different requisite culpable mental states).

Once again, assault with intent to rape under N.J. Stat. Ann. § 2A:90-2 states:
"Any person who commits an assault with intent to kill, or to commit burglary,
kidnapping, rape, robbery or sodomy, or to carnally abuse a female under the age of 16,
with or without her consent, is guilty of a high misdemeanor . . . ." Indeed, the listed
elements of N.J. Stat. Ann. § 2A:90-2 is essentially identical to the title of the offense,
which is "assault with intent to kill, commit burglary, kidnapping, rape, robbery, sodomy
or carnal abuse." Clearly, Kansas does not have a crime called "assault with intent to kill,
commit burglary, kidnapping, rape, robbery, sodomy or carnal abuse." Thus, based upon
the name alone, N.J. Stat. Ann. § 2A:90-2 is different from any crime in Kansas.

Nevertheless, the State is correct that Kansas has an offense that criminalizes the
commission of an assault when the defendant commits the assault with the intent to
commit a felony: aggravated assaults under K.S.A. 21-3410(c). K.S.A. 21-3408 defines
assault as "intentionally placing another person in reasonable apprehension of immediate
bodily harm." K.S.A. 21-3410(c) states: "Aggravated assault is an assault, as defined in
K.S.A. 21-3408 and amendments thereto, committed: . . . with intent to commit any
felony."

Something that makes N.J. Stat. Ann. § 2A:90-2 clearly distinguishable from
K.S.A. 21-3410 is that the act of "assault" is not statutorily defined anywhere under the
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New Jersey criminal code. In State v. Adamo, 9 N.J. Super. 7, 9, 74 A.2d 341 (App. Div.
1950), the New Jersey Superior Court cited to State v. Staw, 97 N.J.L. 349, 350, 116 A.
425 (1921), for the following definition of assault: "[a]n assault has been defined as 'an
attempt or offer with unlawful force or violence to do a corporal hurt or physical injury to
another.'" The New Jersey Superior Court again approved of this definition when
considering the crime of "assault with intent to commit sodomy" under N.J. Stat. Ann.
§ 2A: 90-2 in State v. Still, 112 N.J. Super. 368, 370, 271 A.2d 444 (App. Div. 1970).
The Still court further clarified the definition of assault while distinguishing N.J. Stat.
Ann. § 2A:90-2 "assault with intent to . . ." crimes from attempt crimes. After
recognizing the "classic definitions" of assault, which included a Black's Law Dictionary
definition of assault as unlawful force that created a "well-founded fear of imminent
peril" in another, the Still court concluded that "[a]n assault is an act done toward the
commission of a battery." (Emphasis added.) 112 N.J. Super. at 370-71. In other words,
according to the New Jersey Superior Court, the end goal of an assault must be a battery.

Consequently, despite the fact there is no statutory definition of assault in New
Jersey, one exists through caselaw. Indeed, both Rodriguez and the State cite to the court-
crafted definition of assault as the correct definition of assault. Nevertheless, it is readily
apparent that this New Jersey assault is different than an assault under K.S.A. 21-3410.
This is because Kansas' assaults, and therefore, Kansas' aggravated assaults, require that
the defendant intentionally place the victim in reasonable apprehension of bodily harm.
K.S.A. 21-3408; K.S.A. 21-3410. But, an assault as defined by New Jersey caselaw
requires an attempt to hurt or injure the victim, that is, a nearly completed battery. Thus,
the key differences between the statutes are as follows: (1) N.J. Stat. Ann. § 2A:90-2
requires the defendant to intend to injure or harm the victim while K.S.A. 21-3410 does
not; and (2) N.J. Stat. Ann. § 2A:90-2 does not require intentionally placing another
person in reasonable apprehension of immediate bodily harm while K.S.A. 21-3410 does.

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As a result, Kansas recognizes only tort-type assaults, which does not cover
situations in which the victim is unaware of the assault. Thus, Kansas assaults are
narrower than the usual criminal definition of assault. See State v. Warbritton, 215 Kan.
534, 537, 527 P.2d 1050 (1974). In Warbritton, 215 Kan. at 537, our Supreme Court
held: "It is evident to us that one of the essential elements of assault under the present
statute (21-3408) is an immediate apprehension of bodily harm to his person on the part
of the assaultee." In State v. Deutscher, 225 Kan. 265, 272, 589 P.2d 620 (1979), while
considering the elements of aggravated assault, our Supreme Court held that a defendant's
"threat must result in immediate apprehension of bodily harm." In State v. Duncan, 3
Kan. App. 2d 271, Syl. ¶ 3, 593 P.2d 427 (1979), this court explained that "[t]here is no
assault if the victim is not in immediate apprehension of bodily harm." Furthermore, in
State v. Martinez, 20 Kan. App. 2d 824, 834, 893 P.2d 267 (1995), this court explained
that "[t]he apprehension of bodily harm is a threshold requirement of criminal
culpability" for any assault.

We also find Kansas' lengthy history of defining assault in this manner is
noteworthy. Our Legislature adopted the tort-type assault in 1969 when it recodified the
Kansas criminal code. See L. 1969, ch. 180, § 21-3408, repealing G.S. 1949, 21-436. Yet,
our Supreme Court had affirmed assault convictions on the basis that the defendant
placed the victim in fear of bodily harm at a much earlier time. See The State v. Taylor,
20 Kan. 643, 645 (1878); State v. Archer, 8 Kan. App. 737, 741, 54 P. 927 (1898); The
State v. Coyle, 103 Kan. 750, 750, 175 P. 971 (1918); State v. Hazen, 160 Kan. 733, 739-
41, 165 P.2d 234 (1946).

Thus, because the "immediate apprehension of bodily harm" element is an
essential element of any assault in Kansas, it is readily apparent that Kansas assaults are
narrower crimes than assaults under N.J. Stat. Ann. § 2A:90-2. Defendants who have
committed assaults under N.J. Stat. Ann. § 2A:90-2 need only intend to injure their
victim. Meanwhile, defendants who commit assaults in Kansas must take the extra step of
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placing their victim in fear of bodily harm. Indeed, our Supreme Court and this court
have reversed defendants' aggravated assault convictions where there was no evidence
establishing that the defendant's acts placed the victim in immediate apprehension of
bodily harm. See Warbritton, 215 Kan. at 538; Duncan, 3 Kan. App. 2d at 274.

In summary, Kansas assault crimes require that defendants place their victims in
immediate apprehension of bodily harm while N.J. Stat. Ann. § 2A:90-2 merely requires
that defendants intend to injure their victims. Again, Kansas recognizes only tort-type
assaults while New Jersey does not. Thus, Kansas' and New Jersey's assault statutes do
not criminalize the same core conduct. Kansas assaults penalize a narrower range of
conduct. In other words, assaults in Kansas are narrower than assaults under N.J. Stat.
Ann. § 2A:90-2. As a result, Kansas' assaults, whether aggravated or simple assaults, are
not comparable to N.J. Stat. Ann. § 2A:90-2.

Turning our focus next to the State's argument that N.J. Stat. Ann. § 2A:90-2 may
be comparable to the Kansas offense of attempted rape, which the dissent has also
adopted, we believe this argument is without merit. The dissent argues the following:

"[A]ttempt is always contained within assault with intent to commit but not the other way
around. Thus, using Rodriguez' crime as the example, if one commits assault with intent
to rape, one also commits attempted rape under New Jersey law because one has
committed not just the first act short of completing the crime of rape, but the last as well."
Slip op. at 28.

In turn, the dissent concludes that "assault with intent to rape as defined by [the] New
Jersey statute easily constitutes an overt act required by attempted rape under Kansas law
as the elements of assault with intent to rape in New Jersey are narrower than the
elements of attempted rape in Kansas." Slip op. at 28.

17

Nevertheless, we believe both past and present Kansas statutes, as well as Kansas
Supreme Court caselaw, establish the dissent's analysis is incorrect. In the early to mid-
twentieth century there was a Kansas crime called "felonious assault," which penalized
the commission of "assault with the intent to rape." Specifically, Kansas' "felonious
assault" statute criminalized the commission of "an assault with an intent to commit any
robbery, rape, burglary, manslaughter, or other felony." G.S. 1909, 2529; see also G.S.
1949, 21-431; G.S. 1949, 21-434. In addition, during that time, our Supreme Court
considered whether the crime of "felonious assault" was actually the same crime as
"attempted rape." See, e.g., In re McClane, 129 Kan. 739, 284 P. 365 (1930), overruled
on other grounds by State v. Fowler, 238 Kan. 326, 710 P.2d 1268 (1985); In re
Stahlnaker, 93 Kan. 622, 144 P. 832 (1914); State v. Custer, 85 Kan. 445, 116 P. 507
(1911). Our Supreme Court held that "felonious assault" and "attempted rape" were not
the same crime. Our Supreme Court explained that although the crimes had similarities,
the two crimes were different because an "attempted rape" merely required the defendant
to take some overt act toward the commission of a rape; yet, to be convicted of "assault
with intent to rape" under the "felonious assault" statute, the defendant needed to
specifically commit an assault. See Custer, 85 Kan. at 446-47. Our Supreme Court also
emphasized that assault was an "independent offense" with its own distinct elements.
Stahlnaker, 93 Kan. at 623-24; Custer, 85 Kan. at 446-47.

The lessons from the preceding law are twofold. First, to make the New Jersey
statute comparable to Kansas' "attempted rape" statute, the dissent has equated the
element of assault in N.J. Stat. Ann. § 2A:90-2 to the element of attempt under K.S.A.
21-3301(a). Yet, this equation fails to recognize the distinction that our Supreme Court
considered many years ago—although the overt act that constitutes an attempt may be an
assault, an assault is an independent offense with its own distinct elements. When
Rodriguez committed his "assault with intent to rape" crime under N.J. Stat. Ann.
§ 2A:90-2, New Jersey also criminalized attempted rapes. See, e.g., State v. Stevens, 136
N.J. Super. 262, 264, 345 A.2d 804 (App. Div. 1975) (where the defendant was charged
18

and convicted of attempted rape). Also, as noted by the dissent, in Still, the New Jersey
Superior Court explained that an "attempted sodomy" was a distinct and separate offense
from an "assault with intent to commit sodomy." 112 N.J. Super at 370-71. Thus, it
logically follows that because both New Jersey and our Supreme Court have held that an
attempted crime is not the same offense as an assault with the intent to commit a crime
offense, we do not find these offenses comparable for person-nonperson sentencing
classification purposes.

Second, Kansas' former "felonious assault" statute is very similar to N.J. Stat.
Ann. § 2A:90-2. And, in 1969 while recodifying the entire Kansas criminal code, the
Legislature repealed the "felonious assault" statute while also enacting the "aggravated
assault" statute. L. 1969, ch. 180, § 21-3410; K.S.A. 21-431 (Corrick 1964); K.S.A. 21-
3410. Thus, "felonious assault" is clearly the predecessor statute to Kansas' modern-day
"aggravated assault" statute. We believe the similarity between N.J. Stat. Ann. § 2A:90-2
and the "felonious assault" statute, as well as the "aggravated assault" statute's
replacement of the "felonious assault" statute upon the latter's repeal, establishes that
Kansas' "aggravated assault" statute is Kansas' most comparable offense.

Indeed, this conclusion is consistent with how our Supreme Court has previously
interpreted and applied K.S.A. 21-4711(e). Our Supreme Court has held that "'[t]he court
looks to the most comparable Kansas offense to determine whether the conviction is
classified as a person or nonperson crime.' [Citation omitted.]" (Emphasis added.) State v.
Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003), overruled on other grounds by State
v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015); see also State v. Ohrt, No. 114,516,
2016 WL 3856321, at *6 (Kan. App. 2016) (unpublished opinion) rev. denied 306 Kan.
1327 (2017); State v. Long, No. 110,852, 2014 WL 4723750, at * 3 (Kan. App. 2014)
(unpublished opinion) (both cases where this court recently used the "most comparable
offense" rule). As explained in the preceding paragraphs, an aggravated assault under
K.S.A. 21-3410(c) criminalizes the commission of an assault with the "intent to commit
19

any felony." Additionally, very recently in State v. Wetrich, 307 Kan. ___, 412 P.3d 984,
991 (2018), our Supreme Court emphasized that our Legislature enacted the "comparable
offense" language to ensure that defendants receive "even-handed, predictable, and
consistent application of the law across jurisdictional lines."

Clearly, if N.J. Stat. Ann. § 2A:90-2 had any possibility of being comparable to a
Kansas offense, it would be an aggravated assault because that crime (1) has the element
of assault and (2) has the element of the intent to commit an underlying felony. An
attempt under K.S.A. 21-3301(a), on the other hand, is "any overt act toward the
preparation of a crime done by a person who intends to commit such crime but fails in the
preparation thereof or is prevented or intercepted from executing such crime." Further, a
rape under K.S.A. 21-3502(a)(1)(A)-(C) encompasses "[s]exual intercourse with a person
who does not consent to the sexual intercourse" when the victim is "overcome by force or
fear," is "unconscious or physically powerless," or is " incapable of giving consent . . . ."
Therefore, an "attempted rape" in no way involves criminalizing committing a crime with
the intent to kill, commit burglary, kidnapping, robbery, sodomy or carnal abuse as N.J.
Stat. Ann. § 2A:90-2 does. Moreover, an "attempted rape" in Kansas does not have an
element of assault. Consequently, we think a simple comparison of N.J. Stat. Ann.
§ 2A:90-2 to Kansas' "aggravated assault" and "attempted rape" statutes establishes that
"aggravated assault" is more comparable to N.J. Stat. Ann. § 2A:90-2 than "attempted
rape." In other words, "attempted rape" is not the most comparable Kansas crime to N.J.
Stat. Ann. § 2A:90-2.

In summary, given that Rodriguez was convicted of "assault with intent to rape"
under N.J. Stat. Ann. § 2A:90-2, while engaging in the person-nonperson sentencing
classification comparison under K.S.A. 21-4711(e), we must consider the assault element
of Rodriguez' prior New Jersey "assault with intent to rape" crime. If we were to hold
otherwise, courts could find a defendant's prior out-of-state aggravated-assault-type
conviction comparable to an attempted Kansas crime without ever comparing the
20

meaning of an essential element of the defendant's prior out-of-state offense—assault. In
the context of this case, it would mean ignoring the fact, as the dissent does, that New
Jersey has a broader definition of assault than Kansas, a definition of assault that Kansas
has firmly accepted for decades. Moreover, the dissent's position requires a distorted
interpretation of what our Supreme Court meant when it held the following: "'The court
looks to the most comparable Kansas offense to determine whether the conviction is
classified as a person or nonperson crime.'" (Emphasis added.) Vandervort, 276 Kan. at
179. Finally, the dissent's position is inconsistent with K.S.A. 21-4711(e)'s goal of
ensuring even-handed, predictable, and consistent application of the law across
jurisdictional lines when sentencing defendants.

Once again, because we find that an assault under N.J. Stat. Ann. § 2A:90-2,
which requires "an act done toward the commission of a battery," penalizes broader
conduct than Kansas' tort-type assault under K.S.A. 21-3410, we hold that N.J. Stat. Ann.
§ 2A:90-2 and K.S.A. 21-3410 are not comparable for person-nonperson sentencing
classification purposes under K.S.A. 21-4711(e). When no comparable offense exists,
then a defendant's prior out-of-state crime must be classified as a nonperson crime. Thus,
this court vacates Rodriguez' sentence and remands with directions to classify his assault
with intent to rape as a nonperson crime for criminal history purposes.

Did the State Violate the Terms of its Plea Agreement With Rodriguez?

Rodriguez' final argument is that the State violated the terms of his plea agreement
when it requested that the district court sentence him to the aggravated presumptive
sentence at his resentencing. The State responds that it did not violate the terms of the
plea agreement because the plea agreement was dependent upon Rodriguez having a
criminal history score of A. The State contends that once Rodriguez successfully
challenged his 1997 Nevada burglary conviction as constituting a person felony for
criminal history purposes, it was no longer bound to the terms of the plea agreement.
21

Alternatively, the State argues that if it breached its plea agreement with Rodriguez, its
breach was harmless because Rodriguez did not enter into the plea agreement based upon
its promise to jointly recommend the standard presumptive sentence.

Appellate courts exercise unlimited review over questions involving whether the
State violated a defendant's plea agreement. State v. Urista, 296 Kan. 576, 582-83, 293
P.3d 738 (2013). The State's failure to follow through on a term of a defendant's plea
agreement results in a violation of that defendant's due process rights. 296 Kan. at 583.
To determine if the State failed to comply with a term of a plea agreement, courts rely on
the principles of contract law. 296 Kan. at 583. When the terms of a plea agreement are
open to different interpretations, courts must construe the ambiguous terms strictly in
favor of the defendant. State v. Case, 289 Kan. 457, 462, 213 P.3d 429 (2009). A State's
breach of a plea agreement may be deemed harmless only when the State can establish
beyond a reasonable doubt that the specific part of the agreement it breached had little, if
any, bearing on the defendant's decision to enter into the plea agreement. Urista, 296
Kan. at 594-95; State v. Meyer, 51 Kan. App. 2d 1066, 1071, 360 P.3d 467 (2015).

Here, there is no written plea agreement. Thus, this court's review is limited to the
prosecutor's and Rodriguez' attorney's statements at the plea hearing. Once more, at the
plea hearing, the prosecutor stated that under the terms of the plea agreement, the State
would be dismissing all but one count of sexual exploitation of a child with prejudice,
while also recommending that Rodriguez receive no departures and the standard
presumptive sentence in exchange for Rodriguez' Alford plea. Regarding Rodriguez'
criminal history, the prosecutor stated: "Just no departures, Your Honor. It's
contemplated, but again the parties know that we have no control or bearing on that, but
he is probably a (A) criminal history and be sentenced in column A at the time of
sentencing."

22

The prosecutor's statement recognizing that "the parties kn[e]w that we have no
control or bearing on [Rodriguez' criminal history]" establishes that the prosecutor
understood that Rodriguez' criminal history was out of his control. This is because district
courts are bound to apply a defendant's correct criminal history score. See State v. Boley,
279 Kan. 989, 992, 113 P.3d 248 (2005) (citing State v. Haskins, 262 Kan. 728, 730-32,
942 P.2d 16 [1997]). In any event, by looking at the entirety of the prosecutor's statement,
it is clear that the prosecutor was merely clarifying that the parties had agreed that
Rodriguez should not be given any departures by emphasizing that the parties had
considered what criminal history score Rodriguez would likely have under the KSGA.
On top of this, no terms of the plea agreement prevented Rodriguez from appealing the
legality of his sentence. Thus, Rodriguez did not violate some other condition of his plea
agreement by challenging how his 1997 Nevada burglary conviction was classified for
criminal history purposes. See Boley, 279 Kan. at 993 (explaining that there was no
violation of a plea agreement by defendant who challenged legality of his sentence when
that defendant had not waived his ability to challenge the sentence as part of his plea
agreement).

Accordingly, based upon the prosecutor's statements, it is readily apparent that
Rodriguez having a criminal history score of A was not part of the plea agreement. In
turn, despite the district court's finding to the contrary, the State violated the terms of its
plea agreement with Rodriguez when it recommended to the district court that it sentence
Rodriguez to the aggravated presumptive sentence for his crime of sexual exploitation of
a child. Still, the State asserts that this court can find harmless error because "Rodriguez
was not induced to enter the plea agreement by the promise to recommend the standard
[presumptive] sentence." The State contends that Rodriguez' primary reason for entering
the plea agreement was the dismissal of 52 of the 53 counts of sexual exploitation of a
child with prejudice.

23

There can be little doubt that the dismissal of the 52 counts of sexual exploitation
of a child with prejudice motivated Rodriguez to enter into the plea agreement. Even so,
to find the breach harmless, this court must be convinced "beyond a reasonable doubt that
the State's promise had little, if any, influence on the defendant's decision to enter into the
plea agreement." (Emphasis added.) Urista, 296 Kan. 576, Syl. ¶ 6.

In Meyer, the State violated its plea agreement with Meyer when it recommended
to the district court that it sentence Meyer to aggravated presumptive sentences instead of
the mitigated presumptive sentences as promised in the plea agreement. Another term of
Meyer's plea agreement was that the State would agree to stipulate that Meyer should be
sentenced on the KSGA grid for his otherwise off-grid offenses of aggravated criminal
sodomy and aggravated indecent liberties with a child. In Meyer's appeal to this court, the
State conceded that it breached the plea agreement but argued that the breach was
harmless because (1) "the district court sentenced [Meyer] to mitigated (per the plea
agreement) and concurrent (per his departure request) sentences," and (2) "the most
important part of the plea agreement was the departure to the sentencing grid." 51 Kan.
App. 2d at 1071.

The Meyer court, however, rejected these arguments because "nothing in the
record suggests that Meyer's motivation revolved solely around the departure." 51 Kan.
App. 2d at 1071. The Meyer court explicitly held that the State's unsupported
"speculation" about "Meyer's motivations [for entering the plea agreement were]
insufficient to satisfy the high burden placed upon the State in proving the error's
harmlessness." 51 Kan. App. 2d at 1071. Therefore, the Meyer court agreed to Meyer's
request of specific performance, vacating his sentence and remanding to a different
district court judge with directions that the State specifically perform the plea agreement.
51 Kan. App. 2d at 1072.

24

Plainly, this case and the Meyer case are comparable in many ways. To begin
with, in both cases the State breached the plea agreement by recommending to the district
court that the defendant be sentenced to the aggravated presumptive sentence under the
KSGA instead of a lower presumptive sentence. In both cases, the State has argued
harmless error by pointing out that as part of the plea agreement, the defendant was
promised a significant reduction of prison time, which it believes was the defendant's real
reason the defendant entered into the plea agreement.

Nevertheless, just like in Meyer, the State's assertion about Rodriguez' motivation
for entering into the plea agreement is pure speculation. Here, nothing in the record
indicates Rodriguez' motivation for entering his Alford plea. It is noteworthy, however,
that at the plea hearing, that based upon the parties' belief that Rodriguez had a criminal
history score of A, the difference between an aggravated presumptive sentence for sexual
exploitation of a child and the standard presumptive sentence for sexual exploitation of a
child was six months. The State argues that this is not a significant difference in prison
terms. The State does this by pointing out that if it had not entered into a plea agreement
with Rodriguez and had convicted him of all 53 counts of sexual exploitation of a child,
Rodriguez could have received up to a 544-month prison sentence with an upward
durational departure.

Nevertheless, the fact is that the State did enter into a plea agreement with
Rodriguez. The State undoubtedly had its reasons for entering into a plea agreement
where it dismissed 52 of the 53 remaining counts of sexual exploitation of a child. More
importantly, however, 544 months is a lengthy sentence that is not unlike the two off-grid
sentences that Meyer was facing but for his plea agreement with the State. Yet again, in
that case, the Meyer court rejected the State's argument that the real reason Meyer entered
into the plea agreement was the term concerning the departure to the KSGA grid because
nothing in the record supported that this was the reason that Meyer entered into the plea
agreement.
25


Additionally, in making its arguments, the State has wholly neglected to address
the fact that the district court actually imposed the aggravated presumptive sentence on
Rodriguez for his crime. Thus, there is a substantial likelihood that the State's breach
influenced the district court's sentencing decision. This fact makes the State's breach in
this case worse than the breach in Meyer, where the district court ultimately imposed the
agreed-to mitigated presumptive sentences on Meyer despite the State's breach.

In summary, the State breached its plea agreement with Rodriguez when it
recommended that the district court impose the aggravated presumptive sentence.
Rodriguez having a criminal history score of A was not a term of the plea agreement.
Moreover, the State's breach of the plea agreement was not harmless. "Resentencing
before a different judge is the typical remedy for the State's breach of a plea agreement."
State v. Peterson, 296 Kan. 563, 574, 293 P.3d 730 (2013). Given the sentencing judge's
failure to find the State in breach of the plea agreement as well as his decision to impose
the aggravated presumptive sentence at the State's request, we believe this is the
appropriate remedy. Accordingly, this court vacates Rodriguez' sentence and remands for
a new sentencing hearing before a different district court judge where the State is ordered
to specifically perform the plea agreement.

Conviction affirmed, sentence vacated, and remanded with directions.

* * *

POWELL, J., concurring and dissenting: I concur with the majority's determination
that this case must be remanded for resentencing because I agree with its conclusion that
the State violated the terms of the plea agreement when it recommended the aggravated
presumptive sentence in the appropriate sentencing grid box instead of the standard
presumptive sentence. I also agree that we may consider the merits of Rodriguez' illegal
26

sentence claim because a claim of an illegal sentence may be raised at any time.
However, I must dissent from the majority's holding that Rodriguez' 1977 New Jersey
conviction for assault with intent to rape under N.J. Stat. Ann. 2A:90-2 has no
comparable Kansas crime and must therefore be classified as a nonperson felony.

While I have no quarrel with the majority's determination that Rodriguez' 1977
New Jersey conviction is properly classified as a felony for the reasons it states, I
disagree that there is no comparable Kansas crime. For reasons I hope to explain below, I
agree with the State's assertion that the New Jersey crime of assault with intent to rape is
comparable to the Kansas crime of attempted rape.

Whether Rodriguez' 1977 New Jersey conviction for assault with intent to rape
should be classified as a person or nonperson crime for criminal history purposes requires
a comparison of this crime with "comparable offenses under the Kansas criminal code in
effect on the date the current crime of conviction was committed." K.S.A. 2017 Supp. 21-
6811(e)(3) (formerly K.S.A. 21-4711[e]). In evaluating what is a comparable offense, the
essential question is whether the offenses are similar in nature and cover similar conduct.
State v. Barajas, 43 Kan. App. 2d 639, 643, 230 P.3d 784 (2010). Very recently, our
Supreme Court declared that for an out-of-state conviction to be comparable to an offense
under the Kansas criminal code, the elements of the out-of-state crime cannot be broader
than the elements of the Kansas crime. State v. Wetrich, 307 Kan. __, Syl. ¶ 3, 412 P.3d
984 (2018). In other words, the out-of-state crime must be identical to, or narrower than,
the elements of the Kansas crime to which it is being referenced. Wetrich, 307 Kan. __,
Syl. ¶ 3.

Examining first the rape element of the two statutes, it appears that New Jersey's
definition of rape which existed at the time Rodriguez committed his New Jersey offense
is virtually identical to the Kansas definition. In State v. Terry, 89 N.J. Super. 445, 451,
215 A.2d 374 (App. Div. 1965), the New Jersey appellate court defined the elements of
27

rape as "carnal knowledge, force and lack of consent." In Kansas, rape is, among other
things, engaging in sexual intercourse with a victim without the victim's consent, when
the victim is overcome by force or fear, or when the victim is unconscious or physically
powerless. K.S.A. 2017 Supp. 21-5503(a)(1)(A)-(B) (formerly K.S.A. 21-3502). The
elements of New Jersey rape are the same or narrower as the Kansas elements for rape.

The more difficult comparison is between New Jersey's assault with intent to
commit a crime versus Kansas' attempt to commit a crime.

In Kansas, the elements of attempted rape require the defendant to perform an
overt act toward the commission of rape, to do so with the intent to commit rape, and to
fail to complete the commission of rape. K.S.A. 2017 Supp. 21-5301 (formerly K.S.A.
21-3301). Also, "an overt act requires an act beyond mere preparation, which can be
considered a first or subsequent step in a direct movement towards completing the
crime." State v. Martinez, 290 Kan. 992, 1003, 236 P.3d 481 (2010). An "overt act" has
been broadly interpreted in the context of attempted rape. State v. Zimmerman, 251 Kan.
54, 60, 833 P.2d 925 (1992).

As the majority correctly states, "the act of 'assault' is not statutorily defined
anywhere under the New Jersey criminal code." Slip op. at 14. Generally speaking, New
Jersey law defines an assault as "'an attempt or offer with unlawful force or violence to
do a corporal hurt or physical injury to another' or 'force unlawfully directed toward the
person of another, under such circumstances as create a well-founded fear of imminent
peril, coupled with an apparent present ability to execute the attempt if not prevented.'"
State v. Still, 112 N.J. Super. 368, 370, 271 A.2d 444 (App. Div. 1970). In the context of
rape, New Jersey provides that "assault with intent to [rape] entails conduct which has
surpassed the preparatory or attempt phase of criminality. As such, it must be
characterized by assaultive behavior intended presently and contemporaneously to
[rape]." State v. Mergott, 140 N.J. Super. 126, 132, 355 A.2d 674 (App. Div. 1976).
28


However, the Still court—also cited by the majority—while holding that an
attempt to commit a crime and an assault with intent to commit a crime were not exact
equivalents because assault was "much more literal in its requirement of 'dangerous
proximity to success'" than attempt, stated that "an assault with intent to commit a certain
crime generally includes an attempt to commit that crime," but not vice versa. 112 N.J.
Super at 371. In the context of assault and battery, the court explained that an assault
immediately precedes the battery, with "[t]he next movement . . . complet[ing] the
battery," while "'the overt act done in the attempt to commit an offense need not be the
last proximate act prior to the consummation'" of the crime. 112 N.J. Super at 371
(quoting State v. Hetzel, 159 Ohio St. 350, 352-53, 112 N.E.2d 369 (1953). In other
words, attempt is always contained within assault with intent to commit but not the other
way around. Thus, using Rodriguez' crime as the example, if one commits assault with
intent to rape, one also commits attempted rape under New Jersey law because one has
committed not just the first act short of completing the crime of rape, but the last as well.

Therefore, I conclude that assault with intent to rape as defined by New Jersey
statute easily constitutes an overt act required by attempted rape under Kansas law as the
elements of assault with intent to rape in New Jersey are narrower than the elements of
attempted rape in Kansas. Accordingly, the crimes are comparable under K.S.A. 21-
4711(e). As attempted rape in Kansas is a person crime, K.S.A. 21-3502(c), I would find
that Rodriguez' 1977 New Jersey conviction for assault with intent to rape must be
classified as a person crime.