State v. Waid

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NOT DESIGNATED FOR PUBLICATION

No. 112,559

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.


JESSE DEAN WAID,
Appellant.

MEMORANDUM OPINION

Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed March 11,
2016. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Andrew Hamline, legal intern, Steven J. Obermeier, senior deputy district attorney, Stephen M.
Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., MCANANY and ARNOLD-BURGER, JJ.

Per Curiam: Jesse Dean Waid appeals his conviction of aggravated escape from
custody and his resulting sentence. Waid contends: (1) The State failed to present
sufficient evidence that he had been granted temporary leave "pursuant to express
authorization of law or order of a court," and the jury was not instructed of all of the
essential elements of the charged crime; (2) conflicting jury instructions regarding the
required mental state diluted the State's burden to prove that Waid committed the crime
intentionally; and (3) the district court improperly classified two prior Missouri
convictions as person felonies for criminal history purposes.
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Waid was ordered by the district court to reside at the Johnson County Residential
Center for 12 months after he was found to have violated the terms of his probation. The
court placed him in the custody of community corrections and authorized community
corrections to add conditions of probation as it saw fit. Waid entered the residential
center in April 2013.

Upon his arrival at the residential center, Waid reviewed with his case manager the
residential center's rules that Waid would be required to follow. Waid signed an
agreement disclosing the residential center's policies and the potential penalties for
noncompliance. The rules specifically addressed the terms under which a resident could
be charged with aggravated escape from custody:

"9. Clients are to be at their designated place of assignment. Clients are to keep
themselves available for periodic phone and field checks by staff and, while away from
the facility, must check in as directed. Clients who fail to return to the Center or are not at
their place of assignment may be guilty of escape or aggravated escape under the Kansas
Statutes.

"10. Clients shall not leave the housing unit without prior staff approval.

"a. Clients are required to sign in and out of their assigned building and shall
notify the on-duty staff when going to another assigned area.

"b. If leaving the facility, clients must sign out one hour prior to their
departure time. When the client arrives back to his/her housing unit
he/she must immediately sign back in on his/her sign in/out sheet."

Under the terms of Waid's agreement with the residential center, he was required
to participate in the work-release program. He was informed about the transportation
rules to and from his employment and he was aware that he had to arrange for
transportation based on a planned schedule. Waid also signed a Residential Center Work
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Agreement, which outlined the rules of transportation and the rules relating to his time on
the job. Under those rules, Waid was required to return to the residential center
immediately upon the completion of his job duties. He was required to call the residential
center if he had a problem meeting the scheduled transportation arrangements or if he had
a health issue requiring attention. He was not authorized to leave the State of Kansas.

Waid began working for Epic Landscaping as part of the work-release program.
He regularly signed in and out of the residential center to attend his work-release job at
Epic. A couple of weeks later, Waid signed out of the residential center and went to work
at Epic but failed to return to the center by 10 p.m. that night. He did not contact the
center regarding any problem that prevented him from returning as required. Another
resident of the center also failed to return that same night. After contacting the employer
and police dispatch about Waid's absence, a warrant was issued for Waid's arrest.

Four days later, Waid called the residential center and asked the staff to pick him
up at Research Medical Center in Kansas City, Missouri. His explanation for his absences
was that after he and another resident of the center received their paychecks from Epic,
they decided to check into a hotel rather than return to the center.

Waid was charged and convicted of aggravated escape from custody in violation
of K.S.A. 2015 Supp. 21-5911. The district court sentenced Waid to the mitigated term of
18 months in prison. Waid appeals.

Sufficiency of the Evidence

For his first claim of error, Waid contends the evidence supporting his conviction
was insufficient because the State failed to prove that his leave from the residential
facility was "pursuant to express authorization of law or order of a court."

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To address this claim, we review the evidence in the light favoring the
prosecution. We will uphold the conviction if we are convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt based on that evidence.
State v. Longoria, 301 Kan. 489, Syl. ¶ 30, 343 P.3d 1128 (2015).

K.S.A. 2015 Supp. 21-5911(b)(1)(A) defines aggravated escape from custody as
"[e]scaping while in custody . . . [u]pon a charge, conviction of or arrest for a felony."
K.S.A. 2015 Supp. 21-5911(d)(2) defines "escape" as a "departure from custody without
lawful authority or failure to return to custody following temporary leave lawfully
granted pursuant to express authorization of law or order of a court."

Based on K.S.A. 2015 Supp. 21-5911 and PIK Crim. 4th 59.080, the district court
instructed the jury that the State was required to prove:

"1. The defendant was being held in custody on a conviction of a felony.
"2. The defendant failed to return to custody following temporary leave lawfully granted.
"3. The defendant did so intentionally, knowingly or recklessly.
"4. This act occurred on or about the 8th day of June, 2013 in Johnson County, Kansas.
"For purposes of the crime of aggravated escape from custody, a person is in 'custody'
when he is lawfully placed in a residential facility." (Emphasis added.)

Though the jury was instructed that Waid failed to return to custody following temporary
leave lawfully granted, Waid complains that the statute requires that the State prove that
the leave was lawfully granted "pursuant to express authorization of law or order of a
court." He claims that the State failed to produce evidence that Waid was lawfully
granted leave under either a court order or express authorization of law.

According to Waid, there are situations where an individual might leave custody
pursuant to a court order, such as allowing a person temporary leave to attend a family
funeral. That is not what happened here. But Waid recognizes that an escape also could
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be predicated on not returning to the center after being granted a temporary leave
"pursuant to express authorization of law," such as under a work-release program for
persons in the custody of the Kansas Department of Corrections. See K.S.A. 75-5267
(providing express authorization for work release programs and release from confinement
for persons in the custody of the Department of Corrections).

But Waid claims that the Johnson County Residential Center is not a Department
of Corrections facility; rather, it is a county corrections program. Waid claims that county
corrections programs may receive funding through the Department of Corrections, but
that does not mean that persons held in the Johnson County Residential Center are subject
to other provisions of law governing the Department of Corrections. Therefore, Waid
claims the State failed to provide evidence that the leave was lawfully granted "pursuant
to express authorization of law."

Contrary to this argument is our Supreme Court's holding in State v. Garrett, 235
Kan. 768, 684 P.2d 413 (1984). There, the defendant was convicted of aggravated escape
from custody when he failed to return to a county community corrections center at his
scheduled time. Garrett checked out of the facility on a job-seeking furlough, but he spent
the day visiting family in another county and returned to the center nearly 10 hours after
his scheduled return time. The State charged Garrett with aggravated escape from
custody. The district court found that K.S.A. 21-3810(a) (the prior statute providing for
the offense of aggravated escape from custody) was unconstitutional as applied to Garrett
in a community corrections setting. On review, our Supreme Court reversed, concluding
that the charge of aggravated escape from custody "is applicable to a convicted felon
who, without permission and in violation of the rules, departs from a community
corrections facility or fails to return following temporary leave lawfully granted." 235
Kan. at 775. The Supreme Court specifically found that a community corrections facility
is part of the overall correctional program even though some control is maintained by the
county:
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"The Kansas Community Corrections Act is contained at K.S.A. 1983 Supp. 75-
5290 et seq. It is clear from a reading of the various sections of that act that the
community corrections program is a part of the overall state correctional program. The
secretary of corrections is authorized to make grants of state money to counties for the
development and operation of community correctional services (75-5291). The
corrections advisory board of a particular county is required to develop and implement a
comprehensive plan which must be submitted for approval, not only to the board of
county commissioners, but also to the secretary of corrections (75-5292[d] & [e]). The
community corrections act is to be administered by the secretary of corrections or by
employees of the department of corrections (75-5294). . . . It is clear from all of these
provisions that a community corrections residential center is a detention facility for
holding persons convicted of crimes and also for holding persons detained pursuant to a
court order or imposed as a specified condition of probation or parole." 235 Kan. at 774-
75.

Waid concedes that the State presented evidence showing that the temporary leave
granted was pursuant to a series of agreements between him and the residential center.
These consisted of the residential center agreement, a work-release agreement, and a
sign-in/out sheet. But Waid contends that none of these agreements meet the criteria of
"express authorization of law."

Waid was placed into the work-release program by court order directing him to
complete the program and abide by "all rules and regulations of the assigned programs"
as part of the terms of his probation. In the agreement, Waid agreed to a residential center
plan which contained the following admonition:

"ANY CLIENT RELEASED TO THE CUSTODY OF JOHNSON COUNTY
RESIDENTIAL CENTER WHO WILLFULLY FAILS TO RETURN TO THE
DESIGNATED PLACE OF ASSIGNMENT AT THE TIME SPECIFIED, MAY BE
GUILTY OF ESCAPE OR AGGRAVATED ESCAPE FROM CUSTODY, AND UPON
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CONVICTION, BE SUBJECT TO THE PENALTY PROVIDED IN THE KANSAS
STATUTES ANNOTATED."

Waid argues that he cannot be bound by an agreement, as an agreement is not a
court order. But the court order provided that he abide by all rules and regulations of the
residential center; therefore, the court order encompassed the rules and regulations laid
out in the agreements. As part of the community corrections program, Waid was required
to seek and maintain full-time employment. Leave to participate in community
corrections programs was expressly authorized by law because Waid was ordered to
comply with the requirements of the program. A separate order pertaining to the details
of Waid's work release was not necessary.

When viewed in the light most favorable to the State, a rational factfinder could
fairly conclude that Waid committed the crime of aggravated escape from custody when
he left the residential center for lawfully granted work release and intentionally failed to
return to the facility at the designated time.

Jury Instruction: Failure to Instruct on "Pursuant to Express Authorization of Law or
Order of a Court."

As an alternative to the foregoing argument, Waid contends it was constitutional
error not to instruct the jury that the leave must be "pursuant to express authorization of
law or order of a court." But Waid specifically requested the instruction he now criticizes.
A party may not invite error and then complain of the error on appeal. State v. Verser,
299 Kan. 776, 784, 326 P.3d 1046 (2014). When a defendant's requested instruction is
given to the jury, the defendant cannot later claim on appeal that it was error to give it.
See State v. Jones, 295 Kan. 804, 811-12, 286 P.3d 562 (2012).

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But Waid contends that "pursuant to express authorization of law or order of a
court" is an element of the crime, and he contends the failure to include this in the jury
instruction was structural error of constitutional magnitude because the jury was not
instructed on this element.

The PIK instruction recommends instructing the jury that "the defendant failed to
return to custody following temporary leave lawfully granted or ordered by a court." PIK
Crim. 4th 59.080. It does not contain the language of the statute indicating that the leave
must be lawfully granted "pursuant to express authorization." Our Supreme Court has
stated: "We strongly recommend the use of PIK instructions, which knowledgeable
committees develop to bring accuracy, clarity, and uniformity to instructions. See State v.
Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009)." State v. Barber, 302 Kan. 367, 377-78,
353 P.3d 1108 (2015).

Finding that the defendant failed to return after temporary leave lawfully granted
is not a separate and distinct element from "pursuant to express authorization or order of
a court." Rather, the clause clarifies the phrase "lawfully granted."

Waid suggests that the jury could have found that the permission for leave was
granted by the residential center and not by law. He asserts that a reasonable juror might
have found that Waid's departure was not "pursuant to express authorization of law" and
did not constitute escape. But the residential center had the authority to establish rules
and procedures by which Waid must abide in order to comply with the terms of his order
of probation. The order of probation granted authority to the residential center to establish
the rules and procedures governing Waid's lawful departure from the residential center. A
court order is not required for every temporary departure from the center. We find no
reversible error in the giving of this instruction. But even if the instruction was
inadequate, given the overwhelming evidence that confronted Waid at trial, we are
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convinced beyond a reasonable doubt that instructing the jury in the fashion Waid now
desires would have had no effect on the outcome of the case.

Jury Instruction: Defendant's Mental State

Waid also contends the court erred in describing for the jury the mental state
needed for a conviction of aggravated escape from custody.

Jury Instruction No. 9, which was requested by the State, properly instructed the
jury that it must prove that Waid committed the crime intentionally. But Jury Instruction
No. 11, the elements instruction, instructed the jury that it must find that Waid acted
"intentionally, knowingly, or recklessly." Defense counsel did not object to the
contradictory jury instructions. In fact, he proposed the very instruction he now criticizes.
Thus, the rule of invited error discussed above applies here as well.

But Waid asserts that the dilution of the burden of proof constituted structural
error. Invited error does not apply when the error is structural because structural errors
are so intrinsically harmful that automatic reversal is required. Verser, 299 Kan. at 784.
But structural errors constitute a very limited class of errors that affect the framework
within which the trial proceeds. United States v. Marcus, 560 U.S. 258, 263, 130 S. Ct.
2159, 176 L. Ed. 2d 1012 (2010); see Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827,
144 L. Ed. 2d 35 (1999).

K.S.A. 2015 Supp. 21-5911 does not set forth a required mental state for the
charge of aggravated escape from custody. But the pattern instruction recommended by
the PIK committee for this offense includes an element requiring the State prove that the
accused acted "intentionally, knowingly, or recklessly." PIK Crim. 4th 59.080; see PIK
Crim. 4th 52.300 ("When the statute does not contain a culpable mental state under the
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code, PIK recommends the charging instruction state that the State must prove that the
defendant acted "intentionally, knowingly, or recklessly.").

In its complaint, the State charged Waid with "knowingly . . . and willfully"
committing aggravated escape from custody. Because the State charged intentional and
knowing conduct, it had to prove that Waid acted intentionally and knowingly. See State
v. Chaffee, 36 Kan. App. 2d 132, 142, 137 P.3d 1070 (2006). Thus, a jury instruction that
directs that Waid could be found guilty if the jury found he acted "recklessly" was error
and diluted the State's burden of proof.

But we are satisfied beyond a reasonable doubt that giving this erroneous
instruction did not affect the outcome of the trial. State v. Ward, 292 Kan. 541, 569, 256
P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Instruction No. 9 specifically
instructed the jury: "The State must prove that the defendant committed the crime
intentionally." The evidence presented at trial supported only the conclusion that Waid
acted intentionally, not recklessly. He checked out of the residential center for a work-
release assignment at Epic Landscaping. He received his paycheck at the end of the day
and intentionally did not return to the residential facility at his designated time. Rather
than returning to the facility, he chose to leave with another resident and check into a
hotel. There is no contrary evidence in the record. There is nothing to suggest that Waid
acted recklessly rather than intentionally. In its closing argument, the State argued that
Waid acted intentionally, not recklessly:

"The Defendant did so intentionally. You heard the testimony. He told two of
the—actually residential case managers, Stacey Troutman, as well as CA Hawthorne, he
got paid that Friday, just decided he wasn't coming back; he wasn't returning to the
Residential Center. That's intentional. He intentionally committed this crime.
"And Jury Instruction 9 tells you that the State must prove the Defendant acted
intentionally, that he acted intentionally when it's his desire or conscious objective to do
the act complained of by the State. The act being not returning after a lawful out of center
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placement. That's what he did intentionally. That's the act that the State is complaining
about. That's the—this is the basis of this charge.
"There isn't any accident that he didn't return. He didn't return recklessly. He
stayed in a hotel."

Later, the State reiterated that Waid "intentionally and willfully decided he wasn't
going to come back. He wasn't going to come back at the time assigned, the time
required, and that's what we're talking about here."

Waid did not present any evidence or theory of defense that his state of mind was
at issue. His only defense was that his weekend departure from the facility did not
constitute escape because he eventually called and asked to return to the center. The error
in Jury Instruction No. 11 was harmless.

Sentencing: Classification of Prior Missouri Convictions

Waid argues that in classifying his 2008 and 2013 Missouri convictions for
resisting arrest as person felonies for criminal history purposes, the district court
erroneously made factual determinations about these Missouri convictions in violation of
his constitutional rights under the Sixth and Fourteenth Amendments to the United States
Constitution as articulated in Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276,
186 L. Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000). We are unpersuaded by Waid's argument.

This issue involves the interpretation of the Kansas Sentencing Guidelines Act
(KSGA), which is a legal question over which our review is unlimited. State v. Keel, 302
Kan. 560, Syl. ¶ 4, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). Whether to
classify a prior crime as a person or nonperson crime is determined based on the
classification in effect for the comparable Kansas offense at the time the current crime of
conviction was committed. 302 Kan. 560, Syl. ¶¶ 8-9.
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Waid's extensive criminal history includes two Missouri convictions for "Resist
Arrest by Fleeing/Risking Death or Injury." Waid objected to classifying these two
crimes as person felonies. The district court overruled Waid's objection and sentenced
him to the mitigated term of 18 months in prison. On appeal, Waid argues the district
court erred in classifying these two convictions as person felonies.

In order to classify an out-of-state offense as a person or nonperson felony, K.S.A.
2015 Supp. 21-6811(e)(3) requires the sentencing court to determine what constitutes a
comparable Kansas offense.

Waid's prior Missouri convictions for resisting or interfering with arrest were
controlled by Mo. Rev. Stat. § 575.150 (2000 & 2013 Supp.), which required the State to
prove (1) the defendant knew that a law enforcement officer was making an arrest or a
stop of a person or vehicle, (2) the defendant resisted the arrest or stop by using or
threatening to use violence or physical force or by fleeing from the officer, and (3) the
defendant did so with the purpose of preventing the officer from completing the arrest or
stop. The statute also provides: "Resisting an arrest, detention, or stop by fleeing in such
a manner that the person fleeing creates a substantial risk of serious physical injury or
death to any person is a class D felony." Mo. Rev. Stat. § 575.150.

The sentencing court determined that the Kansas offense comparable to Waid's
Missouri convictions is fleeing and eluding under K.S.A. 2015 Supp. 8-1568(b). This
Kansas statute in effect at the time Waid committed his current crime provided:

"(b) Any driver of a motor vehicle who willfully fails or refuses to bring such
driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police
vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a
stop, and who: (1) Commits any of the following during a police pursuit: (A) Fails to
stop for a police road block; (B) drives around tire deflating devices placed by a police
officer; (C) engages in reckless driving as defined by K.S.A. 8-1566, and amendments
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thereto; (D) is involved in any motor vehicle accident or intentionally causes damage to
property; or (E) commits five or more moving violations." K.S.A. 2015 Supp. 8-1568(b).

Reckless driving as used in this statute is defined in K.S.A. 8-1566 as driving "any
vehicle in willful or wanton disregard for the safety of persons or property." Felony
fleeing and eluding is a person felony. See K.S.A. 2015 Supp. 8-1568(c)(2).

The comparison of crimes to determine whether a prior crime should be treated as
a person felony is made using either the categorical approach or the modified categorical
approach. As stated in State v. Dickey, 301 Kan. 1018, 1038-39, 350 P.3d 1054 (2015),
writ for cert. filed September 17, 2015:

"The categorical approach and modified categorical approach described in
Descamps ensure that sentencing courts, when examining a prior conviction for
sentencing purposes, do not engage in factfinding in violation of Apprendi by attempting
to determine whether a defendant's actions satisfied an element not contained within the
statute under which the defendant's prior conviction arose. See Descamps, 133 S. Ct. at
2281-87. Though Descamps involved determining whether a prior conviction qualified as
a predicate offense under the [Armed Career Criminal Act], the methods Descamps
outlined for making this determination in a constitutionally valid manner necessarily
apply to determining whether a prior burglary conviction should be classified as a person
or nonperson felony under the KSGA."

The categorical approach is appropriate "when the statute forming the basis of the
defendant's prior convictions contains a single set of elements constituting the crime."
301 Kan. at 1037. In that situation, the court determines whether a prior conviction may
be used for sentencing purposes by comparing the elements of the two crimes. If the
elements of the prior crime are the same as or more narrow than the later offense, the
prior crime may be used for sentencing purposes. 301 Kan. at 1037.

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The second approach, the modified categorical approach, "applies when the statute
forming the basis of the prior conviction is a 'divisible statute,' i.e., a statute which
includes multiple, alternative versions of the crime and at least one of the versions
matches the elements of the generic offense." 301 Kan. at 1037.

Here, the modified categorical approach applies because the Missouri statute
includes multiple, alternative versions of the offense and at least one of the versions
matches a comparable Kansas statute. The modified categorical approach allows a
sentencing court, without violating Descamps and Apprendi,

"to look beyond the elements of the statute and examine a limited class of documents to
determine 'which of a statute's alternative elements formed the basis of the defendant's
prior conviction.' [Citation omitted.] Such documents include charging documents, plea
agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well
as findings of fact and conclusions of law from a bench trial. Johnson v. United States,
559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010)." Dickey, 301 Kan. at 1037-
38.

Here, the district court used the modified categorical approach. At sentencing, the
court had certified copies of the convictions and the charging documents in Waid's prior
convictions. The court used these documents to compare Waid's Missouri convictions to
K.S.A. 2015 Supp. 8-1568(b). The district court concluded that pursuant to the certified
copies of the Missouri convictions the offenses were committed in a manner creating
substantial risk of physical injury and should therefore by scored as person felonies. The
judge concluded:

"The Missouri statute in question does allow for resisting or interfering an arrest
to be done either by an individual or a vehicle.
"In reading through that statute, I believe the elements there do support the
scoring as done by the presentence investigator.
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"The last paragraph of that statute clearly says it's a Class C felony when it's done
creating substantial risk or physical injury or death of a person, and that's exactly what is
noted in the certified copies of the Missouri convictions provided by the State.
"So while perhaps it's not identical to our statute, I do think the scoring that was
done by the investigators here was appropriate."

In arriving at the conclusion that these prior Missouri crimes should be treated as
person felonies, the court did not engage in any fact finding in violation of Descamps and
Apprendi but followed the appropriate modified categorical approach.

Affirmed.