State v. Williams

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NOT DESIGNATED FOR PUBLICATION

No. 114,778

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant/Cross-appellee,

v.

DARRELL L. WILLIAMS,
Appellee/Cross-appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion on remand filed February 1, 2019.
Affirmed.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant/cross-
appellee.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee/cross-appellant.

Before ARNOLD-BURGER, C.J., GARDNER, J., and STUTZMAN, S.J.

PER CURIAM: This case comes before us on an order of partial remand from the
Kansas Supreme Court. See State v. Williams, No. 114,778, 2017 WL 4558234 (Kan.
App. 2017) (unpublished opinion), rev. granted 309 Kan. __ (December 17, 2018). The
Kansas Supreme Court summarily vacated the part of our opinion which found the
district court properly classified the following crimes as person misdemeanors for
sentencing: Williams' 2002 California conviction for battery of a spouse, his 2003
Nevada conviction for battery, and his 2009 Nevada conviction for domestic battery. It
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remanded that portion of the case to us for reconsideration in light of State v. Wetrich,
307 Kan. 552, 412 P.3d 984 (2018). But it left intact the remainder of our decision.

Wetrich held that for an out-of-state conviction to be comparable to an offense
under the Kansas criminal code for purposes of calculating a person's criminal-history
score under the sentencing statutes, the elements of the out-of-state crime must be
identical to or narrower than the elements of the referenced Kansas crime. 307 Kan. 552,
Syl. ¶ 3. We note that a determination of the categorical reach of a state crime considers
not only the statute's language, but also relevant statutory definitions and the
interpretation of statutory elements in state judicial opinions. See State v. Gensler, 308
Kan. 674, 685, 423 P.3d 488 (2018) (holding that a prior municipal DUI conviction under
an ordinance does not count as a prior DUI under K.S.A. 2017 Supp. 8-1567 despite
identical elements where the ordinance defined "vehicle" more broadly than did the state
statute and thus prohibited a broader range of conduct); State v. Lamone, 308 Kan. 1101,
1103-04, 427 P.3d 47 (2018) (same, citing Gensler.). So even when the wording of two
statutes is identical, the two crimes may not be comparable. Conversely, even if the
wording of two statutes is different, the two crimes may nonetheless be comparable. We
examine the three misdemeanor crimes below, applying Wetrich's standard.

2002 California Battery of a Spouse

We first address Williams' 2002 conviction in California of battery of a spouse.
California defined battery as "any willful and unlawful use of force or violence upon the
person of another." Cal. Penal Code § 242 (West 2000). The punishment for battering a
spouse was potential imprisonment, a potential fine, or both. Cal. Penal Code § 243(e)(1)
(West 2000). California had no separate domestic battery statute.

But Kansas did. The State compares Williams' California crime of battery of a
spouse to Kansas' crime of domestic battery. The Kansas crime, a person crime, was
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defined as: "(1) Knowingly or recklessly causing bodily harm by a family or household
member against a family or household member; or (2) knowingly causing physical
contact with a family or household member by a family or household member when done
in a rude, insulting or angry manner." K.S.A. 2013 Supp. 21-5414(a). Like the California
statute at issue, the Kansas domestic battery statute provides for punishment by
imprisonment, a fine, or both. K.S.A. 2013 Supp. 21-5414(b).

We first examine the victim element. Williams was convicted of battery of a
spouse. A "spouse," as included in the California penalty section, falls within the Kansas
victim category of "a family or household member," so this element is narrower.

We next examine the mental culpability element. The California statute required
the acts to be "willful or unlawful," while the Kansas statute required the acts to be done
"knowingly or recklessly" or "knowingly . . . when done in a rude, insulting or angry
manner."

Under California law, battery is a general intent crime and "willful" merely means
a willingness to commit the act:

"'[W]hen applied to the intent with which an act is done or omitted, ["willful"] implies
simply a purpose or willingness to commit the act, or make the omission referred to. It
does not require any intent to violate law, or to injure another, or to acquire any
advantage.'
. . . .
". . . Battery, under California law, is a general intent crime. 'This necessarily
excludes criminal liability when the force or violence is accomplished with a "lesser"
state of mind, i.e., "criminal negligence." As with all general intent crimes, "the required
mental state entails only an intent to do the act that causes the harm." [Citations
omitted.]'" James v. State, 229 Cal. App. 4th 130, 137, 142, 176 Cal. Rptr. 3d 806 (2014).

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Similarly, in Kansas, battery is a general intent crime. See K.S.A. 2013 Supp. 21-
5202(i) (stating that all crimes in which the mental culpability requirement is
"knowingly" are general intent crimes); State v. Seba, 305 Kan. 185, 212, 380 P.3d 209
(2016) (stating that when Legislature determines crime requires knowing mental state,
crime is general intent crime). A general intent crime requires simply that the defendant
intentionally or purposefully perform a wrongful act that causes harm. See State v.
Spicer, 30 Kan. App. 2d 317, 323-24, 42 P.3d 742, rev. denied 274 Kan. 1117 (2002).

The two statutes use different language, but any "willful" act under the California
statute would necessarily constitute a "knowing or reckless" act under the Kansas statute.
See K.S.A. 2013 Supp. 21-5202(b) ("Culpable mental states are classified according to
relative degrees, from highest to lowest, as follows: [1] Intentionally; [2] knowingly; [3]
recklessly."). Proving a higher culpable mental state necessarily suffices to prove a lower
culpable mental state. K.S.A. 2013 Supp. 21-5202(c). Under California law, reckless
conduct alone does not constitute a sufficient basis for battery. In re D.H., No. A150699,
2017 WL 6523520, at *4 (Cal. App. 2017) (unpublished opinion). In that respect its
statute is narrower than the Kansas battery statute, which criminalizes certain reckless
conduct. We find the California statute to be narrower than or identical to the Kansas
battery statute in its required mental culpability.

Last, we examine the prohibited acts. California's element of battery requires "use
of force or violence," while Kansas requires "bodily harm" or "physical contact . . . in a
rude, insulting or angry manner." Although the two statutes, at first blush, appear to
require different elements, closer examination shows their identical nature.

California cases establish that even a slight touching may constitute the "use of
force or violence," if done in a rude or angry way.

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"'It has long been established, both in tort and criminal law, that "the least
touching" may constitute battery. In other words, force against the person is enough, it
need not be violent or severe, it need not cause bodily harm or even pain, and it need not
leave any mark.' 'The "violent injury" here mentioned is not synonymous with "bodily
harm," but includes any wrongful act committed by means of physical force against the
person of another, even although [sic] only the feelings of such person are injured by the
act.' Thus, '[a]ny harmful or offensive touching constitutes an unlawful use of force or
violence' for purposes of Penal Code section 242. 'Even a slight touching may constitute a
battery, "if it is done in a rude or angry way." [Citations omitted.]'" James, 229 Cal. App.
4th at 137-38.

The same is true of the Kansas domestic battery statute, which criminalizes physical
contact done in a rude, insulting, or angry manner. See K.S.A. 2013 Supp. 21-5414(a)(2).

Could Williams have violated the California battery statute without also violating
the Kansas battery statute? We think not. His mere touching of his spouse in an "insolent,
rude, or an angry manner," regardless of whether it caused "bodily harm," would be
sufficient to violate both statutes. See California Jury Instructions, Criminal 16.141. Any
worse conduct—use of force or violence—would necessarily have violated the Kansas
statute as well, which criminalizes touching someone in a "rude, insulting or angry
manner." Despite the facial difference between California's "use of force or violence"
element and Kansas' "bodily harm" or "physical contact" element, we find the two, as
interpreted by controlling decisional law, to be identical.

We thus find that the elements of the California crime of battery of a spouse are
narrower than or identical to the elements of the Kansas domestic battery statute. Under
Wetrich, those two crimes are comparable. The district court thus correctly classified
Williams' 2002 California battery conviction as a person misdemeanor.


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2003 Nevada Battery

Williams was convicted in Nevada in 2003 of criminal battery and in 2009 of
domestic battery. As to these misdemeanor crimes, the State generally contends that they
are comparable to battery and domestic battery. Williams responds that both crimes have
elements broader than any Kansas person misdemeanor. Neither party attempts to do an
element by element comparison of one crime to the other, as Wetrich subsequently
teaches.

Nevada defined battery at the relevant time as "any willful and unlawful use of
force or violence upon the person of another." Nev. Rev. Stat. § 200.481(1)(a) (2003).

Kansas defined simple battery at the time of Williams' current offenses as: "(1)
Knowingly or recklessly causing bodily harm to another person; or (2) knowingly
causing physical contact with another person when done in a rude, insulting or angry
manner." K.S.A. 2013 Supp. 21-5413(a). "[B]odily harm has been defined as any
touching of the victim against the victim's will, with physical force, in an intentional
hostile and aggravated manner." State v. Johnson, 46 Kan. App. 2d 870, 881, 265 P.3d
585 (2011).

At first blush, the Nevada battery statute seems to be broader than its Kansas
counterpart because the Nevada statute does not require either bodily harm or that the
contact be done in a rude, insulting, or angry manner. But when we examine how Nevada
decisions have interpreted the statutory elements, we find them comparable, as Wetrich
requires.

As noted in our previous opinion, the Nevada Legislature adopted the California
battery statute in 1925, and Nevada courts have considered California precedent
persuasive when determining what conduct satisfies the elements of battery. Hobbs v.
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State, 127 Nev. 234, 238, 251 P.3d 177 (2011). Having reviewed the California precedent
above, we adopt that rationale as to this identical Nevada battery statute.

Nevada's battery statute requires the "willful and unlawful use of force or violence
upon the person of another." Nev. Rev. Stat. § 200.481(1)(a). But the Nevada Supreme
Court has found that the phrase "use of force or violence" means "that force need not be
violent or severe and need not cause bodily pain or bodily harm." 127 Nev. at 238.
Instead, "'[o]nly a slight unprivileged touching is needed to satisfy the force requirement
of a criminal battery.'" 127 Nev. at 239 (quoting People v. Ausbie, 123 Cal. App. 4th 855,
860 n.2, 20 Cal. Rptr. 3d 371 [2004], disapproved of on other grounds by People v.
Santana, 56 Cal. 4th 999, 157 Cal. Rptr. 3d 547, 301 P.3d 1157 [2013]). The Nevada
Supreme Court interpreted its statute to mean that "battery is the intentional and
unwanted exertion of force upon another, however slight" and found that intentionally
spitting on another was enough to satisfy the use of force or violence battery element.
Hobbs, 127 Nev. at 239. The court noted that its construction of the statute "comports
with the common law definition of battery. 2 Charles E. Torcia, Wharton's Criminal Law
§ 177, at 414-15 (15th ed. 1994) ('At common law, the contact need not result in physical
harm or pain; it is enough that the contact be offensive.')." 127 Nev. at 238.

Harmless but offensive force satisfies the willful and unlawful use of force or
violence element of the Nevada battery statute. Williams could not have willfully and
unlawfully used force or violence upon the person of another, so as to violate the Nevada
statute, without touching that person in a rude, insulting, or angry manner, as would
violate the Kansas statute.

The elements of the Nevada battery statute, as interpreted by the Nevada Supreme
Court, are narrower than or identical to the elements of the Kansas battery statute. Under
Wetrich, those two crimes are comparable, so the district court correctly scored Williams'
2003 Nevada battery as a person crime.
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2009 Nevada Domestic Battery

At the time of Williams' 2009 Nevada domestic battery conviction, Nevada
defined that crime by using the definitions of domestic violence and battery. Nevada
defined domestic violence as:

"(1)Domestic violence occurs when a person commits one of the following acts
against or upon the person's spouse or former spouse, any other person to whom the
person is related by blood or marriage, any other person with whom the person is or was
actually residing, any other person with whom the person has had or is having a dating
relationship, any other person with whom the person has a child in common, the minor
child of any of those persons, the person's minor child or any other person who has been
appointed the custodian or legal guardian for the person's minor child:
(a) A battery." Nev. Rev. Stat. 33.018(1)(a) (2008).

Nevada defined battery as noted above—"any willful and unlawful use of force or
violence upon the person of another." Nev. Rev. Stat. 200.481(1)(a) (2008).

Kansas defined simple battery at the time of Williams' current offenses as: "(1)
Knowingly or recklessly causing bodily harm to another person; or (2) knowingly
causing physical contact with another person when done in a rude, insulting or angry
manner." K.S.A. 2013 Supp. 21-5413(a). As we have concluded above, the elements of
Nevada's battery statute are narrower than or identical to the elements of Kansas' battery
statute.

The sole difference to our analysis here is that Nevada's domestic violence statute
limits the categories of persons who may be victims of that crime. Those categories are
broader than the "family or household member" category in the Kansas domestic battery
statute. See K.S.A. 2013 Supp. 21-5414(a). For example, the Nevada domestic violence
statute includes as victims: "any other person to whom the person is related by blood or
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marriage, . . . the minor child of any of those persons, . . . [and] any other person who has
been appointed the custodian or legal guardian for the person's minor child." It is thus
possible that Williams could have committed the crime of domestic violence in Nevada
against a person who was not "a family or household member," as the Kansas domestic
battery statute requires. The Nevada domestic violence statute is thus not comparable to
the domestic battery statute in Kansas.

Nonetheless, we reject Williams' assertion that the Nevada crime of domestic
battery has elements broader than any Kansas person misdemeanor. The State suggests in
its brief that domestic violence crimes and battery crimes are closely related, and we
agree. Based on our analysis above, the Nevada crime of domestic violence is
comparable to the crime of battery in Kansas. Although the Nevada crime of domestic
violence broadly defines potential victims, those categories of victims all fall within the
even broader category of victims in the Kansas battery statute—"another person." The
Nevada domestic violence statute is thus narrower than the Kansas battery statute,
violation of which is a person crime. The district court thus properly found Williams'
2009 Nevada domestic battery to be a person misdemeanor.

As a result, the district court properly classified Williams' 2002 California
conviction for battery of a spouse, his 2003 Nevada conviction for battery, and his 2009
Nevada conviction for domestic battery as person misdemeanors when calculating his
criminal history score for sentencing.

Accordingly, we affirm the remanded portion of this case.