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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,346

STATE OF KANSAS,

Appellee,

v.

TIOFILO RODRIGUEZ,

Appellant.

SYLLABUS BY THE COURT

1.

Charging documents do not bestow or confer subject matter jurisdiction on state 

courts to adjudicate criminal cases; the Kansas Constitution does. 

2.

Charging documents need only show that a case has been filed in the correct court, 

e.g., the district court rather than municipal court; show that the court has territorial 

jurisdiction over the crime alleged; and allege facts that, if proved beyond a reasonable 

doubt, would constitute a Kansas crime committed by the defendant.

3.

A Kansas charging document should be regarded as sufficient if the State's factual 

allegations of the defendant's intention and action, when compared to the statutory 

definition of the crime charged and when proved beyond a reasonable doubt, would 

justify a guilty verdict.
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4.

If a charging document is statutorily insufficient, the next step is a harmlessness 

inquiry under K.S.A. 2015 Supp. 60-261 and K.S.A. 60-2105 to examine whether the 

defect affected the defendant's substantial rights.

5.

An out-of-state misdemeanor that only requires the defendant to act with criminal 

negligence is not comparable to a Kansas offense that requires the defendant to act 

recklessly. If an out-of-state misdemeanor is not comparable to a Kansas offense, it must 

be scored as a nonperson crime in this state. 

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 6, 

2015. Appeal from Grant District Court; CLINTON B. PETERSON, judge. Opinion filed March 24, 2017. 

Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. 

Judgment of the district court is affirmed in part, sentence vacated, and case remanded with directions.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the 

briefs for appellant. 

Jessica E. Akers, county attorney, argued the cause, and Derek Schmidt, attorney general, was

with her on the briefs for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Tiofilo Rodriguez petitions this court for review of the Court of 

Appeals' decision in State v. Rodriguez, No. 110,346, 2015 WL 715528 (Kan. App. 2015) 

(unpublished opinion), which affirmed his conviction and sentence for aggravated 

kidnapping and related charges. We granted the petition in part, designating two issues 

for review, to-wit: (1) whether the information charging Rodriguez with aggravated 
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kidnapping was so defective as to warrant reversal; and (2) whether two prior Colorado 

misdemeanor convictions were improperly classified and aggregated with another 

misdemeanor conviction to be scored as a person felony for criminal history purposes. 

Under the paradigm for analyzing defective charging instrument claims raised for the first 

time on appeal recently established in State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016), 

the claimed defects in charging Rodriguez with aggravated kidnapping do not require 

reversal of that conviction. But the State failed to establish that the Colorado convictions 

qualified for aggregation in this state. Accordingly, Rodriguez' convictions are affirmed, 

but his sentence is vacated and the case is remanded for resentencing under the 

appropriate criminal history score.

FACTUAL AND PROCEDURAL OVERVIEW

On December 29, 2011, Rodriguez lived with his girlfriend, Alicia Apodaca, and 

her two sons, J.R. and S.R., in Alicia's apartment in Ulysses. At the time, J.R. was age 14 

and S.R. was 13 years old. On that date, Alicia decided to sleep in her sons' bedroom, 

after smelling liquor on Rodriguez' breath. But Rodriguez entered the boys' bedroom and, 

after watching television for a time, suddenly shut the door, telling Alicia and the boys 

that they would not be getting out of the bedroom ever again. He battered Alicia for about 

2 hours, punching and kicking her in the face, legs, head, and back, as well as pulling her 

hair. Rodriguez repeatedly threatened that Alicia would not live through the night and 

that her sons were going to watch her die. When the boys tried to help their mother, 

Rodriguez hit and shoved them. He tied the boys' ankles with shoelaces.

When Alicia tried to escape, Rodriguez threw her against the wall with such force 

that the impact broke the sheetrock. Alicia required medical attention at the hospital and 

would later relate that her vision was blurry for 2 weeks. 
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Although Rodriguez broke one cellphone, the three victims managed to call 911 

during the ordeal. Ultimately a Grant County Sheriff's deputy and Ulysses police officer 

arrived and started to force their way in when they heard screaming and glass breaking. 

Deputy Johnathon Smith began to kick in a door, before Rodriguez opened the door and 

let the officers in. Officer Julie Hart found Alicia, J.R., and S.R. barricaded in the 

bedroom. The officer cut the shoelaces from S.R.'s ankles and observed that his hands 

were bloody. He had broken the glass window to get the officers' attention when he heard 

them arrive. 

While Smith was leading Rodriguez out of the apartment in handcuffs, Rodriguez 

told Alicia, J.R., and S.R. that when he got out of jail he would come back to "get them" 

and finish what he started. He bragged that he could get out of the handcuffs at any time.

Officer Hart interviewed the victims at their home and later at the hospital and 

took pictures of Alicia's injuries. The boys' testimony at trial was fairly consistent with 

Officer Hart's account and their testimony at the preliminary hearing, albeit there were 

some discrepancies. J.R. and S.R. both testified at the preliminary hearing that Rodriguez 

had not threatened their lives, but at the jury trial, they both said that Rodriguez had

threatened them. They explained the difference by saying they were nervous at the 

preliminary hearing because it was the first time they had seen Rodriguez since the 

ordeal. Alicia's trial testimony was consistent with her prior statements, except that she 

added at trial that all three victims had vomited into a trash can during the violence. 

Rodriguez testified on his own behalf. He admitted to hitting Alicia three times.

He said they were arguing because Alicia was calling or texting someone else and she 

had asked him to move out—first within 2 weeks, but then said to be out within 6 days. 

Rodriguez denied all other accusations, specifically stating that he had not hit Alicia more 

than three times, had not kicked her, and had not pushed her against the wall. He claimed 
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the hole in the sheetrock occurred after he left the room to open the door for the police. 

He also denied hitting S.R. and J.R., denied threatening them, and denied tying them up. 

He said he never prevented anyone from leaving the bedroom. 

Rodriguez called three witnesses—cousins with whom he spent the evening before 

returning to the apartment on the night of the incident. The first two witnesses, Herminia 

Parada and Nancy Guerrero, said Rodriguez was at their houses from 2:30 to 7:30 p.m. 

on the 28th. They also said he was only fluent in English, not Spanish, presumably to 

refute the shouting in Spanish that can be heard on the recorded 911 calls. Nevertheless, a 

female voice can be heard on the recording pleading, "Tio, no."

The third witness, Sisto Rodriguez, said he and Rodriguez drank together that 

evening until about 11:30 but that Rodriguez did not seem drunk when he left, despite the 

two having split a 12-pack of beer. Sisto also said Rodriguez was not fluent in Spanish. 

The jury found Rodriguez guilty of aggravated kidnapping of Alicia, kidnapping 

of J.R., kidnapping of S.R., aggravated battery of Alicia, criminal threat of Alicia, 

criminal threat of J.R., criminal threat of S.R., battery of J.R., and battery of S.R. The 

jury found Rodriguez not guilty of aggravated assault of Alicia and criminal damage to 

property. 

The prior conviction worksheet on Rodriguez' presentence investigation report 

reflected two Colorado misdemeanor convictions for third-degree assault, pursuant to

Colo. Rev. Stat. § 18-3-204, and a misdemeanor battery conviction from the municipal 

court in Ulysses. Aggregating the three misdemeanors to score as one person felony 

elevated Rodriguez' criminal history score from D to B. Rodriguez, 2015 WL 715528, at

*13. 
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At the sentencing hearing, the defense called Parada and Guerrero to testify to 

their cousin's good character and to cast aspersions on the victims' motives. Rodriguez 

took the stand to ask the court to take into consideration the various good acts he had 

performed, particularly his service in the Marines around the time of the first Iraq war.

During his allocution, Rodriguez made the following statement, which the sentencing 

court apparently interpreted as a stipulation to the criminal history score, to-wit:

"I got my presentence report. Yeah, you know, [the State] wants to use my record 

against me, and that's the law. That's the law, Judge, you know that. That is the law. I'm 

not—I'm not fighting that. If you're going to use that against me, use what I've done 

good. I've done a lot more good than I've done bad, I have." 

Using a criminal history score of B, selecting the aggravated grid box sentence for 

each of the felonies, and imposing the sentences consecutively, the court sentenced 

Rodriguez to a controlling prison term of 774 months, or 64 1⁄2 years. Rodriguez timely 

appealed, and a divided panel of the Court of Appeals affirmed his conviction. The 

concurring and dissenting judge, Senior Judge Edward Larson, challenged the statutory 

authority to aggregate the Colorado misdemeanors and would have vacated Rodriguez' 

sentence and remanded to resentence with a criminal history of D. 

Rodriguez sought our review on five issues, but we granted review on only the 

two issues described above relating to a defective charging instrument and the 

aggregation of out-of-state misdemeanor convictions.
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DEFECTIVE CHARGING INSTRUMENT

For the first time on appeal, Rodriguez contends that the information in his case, 

even as amended, failed to charge him with the crime of aggravated kidnapping against 

Alicia. Aggravated kidnapping incorporates the elements of simple kidnapping, which, in 

turn, requires that the kidnapper confine the victim with the intent to hold the person for 

one of four statutorily specified purposes. K.S.A. 2011 Supp. 21-5408. The specific intent 

set forth in the jury instructions with respect to the kidnapping of Alicia was the one 

described in K.S.A. 2011 Supp. 21-5408(a)(3), which is "[t]o inflict bodily injury or to 

terrorize the victim or another."

But neither that specific intent element nor any other was included in the charging 

document. Instead, the information simply alleged that Rodriguez did "take or confine 

any person, to wit: ALICIA APODACA, accomplished by force, threat, or deception, 

and bodily harm is inflicted upon the person kidnapped." The last part of the charge—

about bodily harm being inflicted—was necessary in this case because kidnapping is 

elevated to aggravated kidnapping "when bodily harm is inflicted upon the person 

kidnapped." K.S.A. 2011 Supp. 21-5408(b).

Rodriguez asserts that, because the charging document omitted the specific intent 

element, it failed to charge kidnapping. Consequently, if the information did not charge 

kidnapping, it could not charge aggravated kidnapping, but rather only charged the crime 

of criminal restraint. He asks this court to overrule State v. Hall, 246 Kan. 748, 793 P.2d 

737 (1990), with respect to the analysis employed on defective complaint claims raised

for the first time on appeal, and find that the omitted element requires reversal. In the 

alternative, Rodriguez argues that, even under the Hall test, the defective complaint 

precluded any challenge to the sufficiency of the evidence to support kidnapping because 
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the defendant could not know which specific intent the State was trying to prove. Thus, 

the conviction should be reversed because Rodriguez was deprived of his "substantial 

rights to a fair trial."

The Court of Appeals panel opined that it was still duty-bound to follow the 

precedent set in Hall. Rodriguez, 2015 WL 715528 at, *7; see State v. Ottinger, 46 Kan. 

App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012) (Court of 

Appeals is duty bound to follow Kansas Supreme Court precedent absent indication 

Supreme Court is departing from previous position). Further, it rejected Rodriguez' 

argument that the missing element claim should be reviewed under a sufficiency of the 

evidence theory and found that the evidence was sufficient for the jury to convict of 

aggravated kidnapping under the elements instruction given to the jury. 2015 WL 

715528, at *8-9.

Standard of Review 

As Rodriguez acknowledged in his petition for review, at that point in time, this 

court was seeking additional briefing on the Hall analysis in the Dunn case and the 

outcome of that case could affect Rodriguez' claims. The decision in Dunn was 

subsequently filed, and it will affect this case. It overruled Hall's special preservation 

treatment of defective charging instrument errors, as well as overruling the notion that the 

charging document bestows or confers subject matter jurisdiction on state courts to 

adjudicate criminal prosecutions. Dunn, 304 Kan. at 811. Given that the Court of Appeals 

based its decision on Hall, we must, by necessity, exercise de novo review of this issue.
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Analysis

As suggested above, Dunn overruled a substantial amount of the law that had been 

applicable to charging document challenges for at least the last half-century. See, e.g.,

State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966) (omitted element in charging 

document will result in reversal for lack of jurisdiction). Dunn summarized the result of 

those changes as follows:

"[C]harging documents do not bestow or confer subject matter jurisdiction on state courts 

to adjudicate criminal cases; the Kansas Constitution does. Charging documents need 

only show that a case has been filed in the correct court, e.g., the district court rather than 

municipal court; show that the court has territorial jurisdiction over the crime alleged; 

and allege facts that, if proved beyond a reasonable doubt, would constitute a Kansas 

crime committed by the defendant." 304 Kan. at 811.

Because of that subsequently overruled prior caselaw, Rodriguez understandably 

based his arguments on his assertion that the charging document did not contain all of the 

elements of aggravated kidnapping. But Dunn also specifically overruled the "categorical 

declaration that a charging document must include all essential elements of the charged 

offense to avoid insufficiency." 304 Kan. at 811. Instead, a charging document's 

sufficiency is now tested by comparing the facts it alleges against the statutory definition 

of the charged crime. As Dunn explained:

"The plain language of K.S.A. 22-3201(b) is relatively clear: A charging 

document shall state 'essential facts' constituting the crime charged, and the document 

'shall be deemed sufficient' if it is 'drawn in the language of the statute.' The statute's 

emphasis on 'facts' rather than 'elements' is repeated in other related statutes and legally 

significant. A Kansas charging document should be regarded as sufficient now, as it was 

before Minor, when it has alleged facts that would establish the defendant's commission 
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of a crime recognized in Kansas. See State v. Hazen, 160 Kan. 733, 736-39, 165 P.2d 234 

(1946) (charging document sufficient despite failure to include affirmative allegation that 

defendant intended a specific person bodily injury); James [v. Amrine, 157 Kan. 397, 

400, 140 P.2d 362 (1943)] (charging document sufficient despite erroneously alleging 

crime took place 6 months after defendant's trial); [State v.] Keester, [134 Kan. 64, 71, 

4 P.2d 679 (1931)] (charging document merely discloses jurisdiction; not necessary for 

charging document to state both counties in which crime took place). Because all crimes 

are statutorily defined, this is a statute-informed inquiry. The legislature's definition of 

the crime charged must be compared to the State's factual allegations of the defendant's 

intention and action. If those factual allegations, proved beyond a reasonable doubt, 

would justify a verdict of guilty, then the charging document is statutorily sufficient. If 

the charging document is instead statutorily insufficient, then the State has failed to 

properly invoke the subject matter jurisdiction of the court, and an appropriate remedy 

must be fashioned. The problem is not a substantive absence of jurisdiction; it is a 

procedural failure to demonstrate its existence. The availability of a remedy is key. 

Statutory infirmity does not inevitably fail to bestow subject matter jurisdiction or 

deprive the court of jurisdiction or destroy jurisdiction. See K.S.A. 22-3502 (arrest of 

judgment available if charging document does not charge crime or court without 

jurisdiction)." (Emphasis added.) 304 Kan. at 811-12.

Although argued in the context of a missing element, Rodriguez' contention is that 

the information failed to allege that he confined Alicia with the specific intent to inflict 

bodily injury or to terrorize Alicia or another. Instead, the charging document simply 

alleged that Rodriguez took or confined Alicia by force, threat, or deception—without 

alleging a reason for such taking or confinement—and that bodily injury was inflicted 

upon Alicia. Under the new test from Dunn, the question becomes whether proof of those

charging document factual allegations would produce sufficient evidence from which a 

rational jury could find, beyond a reasonable doubt, that Rodriguez committed the crime 

of kidnapping as it is defined by statute. 
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Rodriguez presents a compelling argument; it would not be sufficient evidence of 

kidnapping, as defined in K.S.A. 2011 Supp. 21-5408(a), for the State to prove only the 

physical act of taking or confining a person by force, threat, or deception. Otherwise, a 

person who, by force, threat, or deception, takes an uncooperative surprise party honoree 

to the party site could be subject to prosecution for the crime of kidnapping. And, if 

bodily injury is inflicted on the honoree by a guest's exuberant expression of surprise, the 

"crime" would be elevated to aggravated kidnapping. In other words, a "statute-informed 

inquiry," 304 Kan. at 812, reveals that an actor's reasons for holding a victim are an 

indispensable part of the crime of kidnapping. See K.S.A. 2011 Supp. 21-5408(a)(1)-(4). 

As noted above, Dunn instructs us to compare the legislature's definition of 

kidnapping "to the State's factual allegations of the defendant's intention and action." 

304 Kan. at 812. Here, however, the State made no factual allegations regarding 

Rodriguez' intention. Perhaps if the information had alleged that it was Rodriguez who 

had inflicted the bodily injury on Alicia, one could reasonably infer that, because he 

inflicted bodily injury on Alicia, he forcibly confined her with the intent to inflict that 

bodily injury. But the passive voice of the charging document—"bodily harm is inflicted 

upon the person kidnapped"—does not necessarily support an inference that Rodriguez 

inflicted the bodily injury, much less that he intended to hold the victim for that purpose. 

Consequently, the State failed to charge the crime of aggravated kidnapping of Alicia.

The next step in the Dunn analysis is a "harmlessness inquiry under K.S.A. 2015 

Supp. 60-261 and K.S.A. 60-2105," to "examine whether the defect affected [Rodriguez'] 

substantial rights." 304 Kan. at 821. Dunn concluded that the charging document error in 

that case did not affect the defendant's substantial rights "because [Dunn] and his trial 

counsel clearly understood exactly what the State sought to prove on [the forgery count]." 

304 Kan. at 821.
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The same is true for Rodriguez. His trial testimony was aimed at refuting the 

State's claim that he intended to inflict bodily injury or terrorize the victims. Rodriguez

testified that he argued with Alicia and admitted to hitting her three times. But then he 

specifically denied that he had hit Alicia more than three times; denied that he had kicked 

her; and denied that he had pushed her against the wall. With respect to S.R. and J.R., 

Rodriguez denied hitting them, denied threatening them, and denied tying them up. He 

claimed that he never prevented anyone from leaving the bedroom. The defense called 

three witnesses to testify that Rodriguez did not speak Spanish, presumably to refute that 

it was his voice terrorizing the victims in Spanish on the recorded 911 calls. In short, 

Rodriguez defended as if he had been explicitly told that the claim against him was that 

he confined Alicia in the bedroom by force or threat with the intent to hold her to inflict 

bodily injury or terrorize her, and that she did sustain bodily injury. A more carefully 

worded charging document would not have changed the defense. Rodriguez' substantial 

rights were not affected by the error.

AGGREGATION OF COLORADO MISDEMEANOR CONVICTIONS

In the second issue upon which we granted review, Rodriguez challenges the 

district court's use of a criminal history score of B to impose the sentence on the base 

offense of aggravated kidnapping. The presentence investigator arrived at that score by 

aggregating three misdemeanors to rate as an additional person felony. See K.S.A. 2011 

Supp. 21-6811(a) (every three prior convictions for Class A or Class B person 

misdemeanor counted as one person felony). Rodriguez argues that two of the aggregated 

convictions were for Colorado misdemeanors that were not subject to aggregation under 

the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2011 Supp. 21-6801 et 

seq., and that his score should have been D. That change in criminal history score would 

reduce the maximum presumptive sentence for aggravated kidnapping from 618 months 
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to 267 months, i.e., Rodriguez' prison term would be shortened by more than 29 years. 

2015 WL 715528, at *16.

Standard of Review

Our resolution of the question presented on determining a criminal history score 

will involve statutory interpretation, which is a question of law subject to de novo review. 

See State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015) (whether prior conviction 

should be classified as person or nonperson offense involves interpretation of KSGA, a 

question of law over which appellate courts have unlimited review).

Analysis

First, we pause briefly to address the notion that Rodriguez' statements during 

allocution included a criminal history stipulation that invited any error in the calculation 

of his criminal history score. The Court of Appeals noted that Rodriguez was challenging 

the classification and aggregation of his prior convictions, not their existence, and, as 

such, those were "questions of law . . . not subject to the invited error rule as no party can 

stipulate to an incorrect application of the law. [Citation omitted.]" Rodriguez, 2015 WL 

715528, at *13. We agree. See also State v. Hankins, 304 Kan. 226, 231-32, 372 P.3d 

1124 (2016) (Kansas criminal defendant cannot stipulate to illegal sentence). Further, the 

panel opined that Rodriguez' "statements were not close to being a stipulation of his 

criminal history score." 2015 WL 715528, at *14. Again, we agree and turn to the merits.

As noted above, K.S.A. 2011 Supp. 21-6811(a) specifically provided for the 

aggregation of "[e]very three prior adult convictions . . . of class A and class B person 

misdemeanors in the offender's criminal history, or any combination thereof," to be 

scored as "a person felony for criminal history purposes." The KSGA also allowed for the 
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use of out-of-state convictions in the calculation of Rodriguez' criminal history score, 

which would include the aggregation procedure. Specifically, K.S.A. 2011 Supp. 

21-6811(e) provided: 

"Out-of-state convictions and juvenile adjudications shall be used in classifying

the offender's criminal history. An out-of-state crime will be classified as either a felony

or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in

another state, it will be counted as a felony in Kansas. The state of Kansas shall classify

the crime as person or nonperson. In designating a crime as person or nonperson

comparable offenses shall be referred to. If the state of Kansas does not have a

comparable offense, the out-of-state conviction shall be classified as a nonperson crime."

Rodriguez' two prior Colorado convictions were for a crime labeled third-degree 

assault under Colo. Rev. Stat. § 18-3-204. One conviction was in 2001 and the other in 

2005. Although the Colorado statute was amended in 2004, the statutory language 

defining the crime of third-degree assault that is relevant to our inquiry has remained 

substantively the same since 1977, to-wit:

"A person commits the crime of assault in the third degree if the person 

knowingly or recklessly causes bodily injury to another person or with criminal 

negligence the person causes bodily injury to another person by means of a deadly 

weapon. Assault in the third degree is a class 1 misdemeanor[.]" Colo. Rev. Stat. 

§ 18-3-204 (2004). 

Because Colorado classified third-degree assault as a misdemeanor, K.S.A. 2011 

Supp. 21-6811(e) required that those convictions be scored as misdemeanors in 

calculating a Kansas criminal history. But the same statute directs this state to determine

the classification of the misdemeanor as person or nonperson by referring to comparable 

offenses. Both the majority and dissenting opinions below refer to an earlier Court of 

Appeals decision, State v. LaGrange, 21 Kan. App. 2d 477, 481-82, 901 P.2d 44, rev. 
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denied 258 Kan. 861 (1995), which applied K.S.A. 1994 Supp. 21-4711(e)—an earlier, 

yet identical version of K.S.A. 2011 Supp. 21-6811(e)—to Colorado's third-degree 

assault. 

LaGrange opined that while the Kansas statute precluded classifying the Colorado 

conviction as a felony for Kansas criminal history purposes because Colorado classified it 

as a misdemeanor, "the statute does not prevent a [Kansas] court from considering a 

felony as a comparable offense for purposes of determining whether an out-of-state 

misdemeanor offense is a person or nonperson crime." 21 Kan. App. 2d at 482. After 

relating that the gravamen of the Colorado offense was "with criminal negligence . . . 

caus[ing] bodily injury to another person . . . by means of a deadly weapon," LaGrange

determined that the comparable Kansas offense was aggravated battery, a person felony, 

defined under K.S.A. 1994 Supp. 21-3414(a)(2)(B) as "'recklessly causing bodily harm to 

another person with a deadly weapon.'" 21 Kan. App. 2d at 481. Accordingly, LaGrange 

found that the Colorado conviction could be classified as a person misdemeanor for 

Kansas criminal history purposes. 

LaGrange inexplicably ignored the statutory language in K.S.A. 1994 Supp. 

21-4711(a) making aggregation only applicable to "class A and class B person 

misdemeanors." The rule it applied was simply that "three prior person misdemeanors 

count as one prior person felony conviction." 21 Kan. App. 2d at 481. Therefore, 

LaGrange was not constrained by the absence of a statutory mechanism for classifying 

out-of-state misdemeanors as either class A or class B in this state. Rather, that panel 

simply held that the Colorado conviction, classified as a person misdemeanor in this 

state, could be used for a K.S.A. 2011 Supp. 21-6811(a) aggregation.

Because we find LaGrange's comparability holding to be flawed, we need not 

resolve the dispute over whether the Colorado conviction should have been classified as a 
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Class A or B misdemeanor in this state. As noted above, K.S.A. 2011 Supp. 21-6811(e) 

directs that, if this state "does not have a comparable offense, the out-of-state conviction 

shall be classified as a nonperson crime." And nonperson misdemeanors are not 

aggregated. 

To reiterate, LaGrange compared some elements of Colorado's third-degree 

assault—"with criminal negligence . . . caus[ing] bodily injury to another person . . . by 

means of a deadly weapon"—to the elements of a version of Kansas' aggravated 

battery—"'recklessly causing bodily harm to another person with a deadly weapon.'"

K.S.A. 1994 Supp. 21-3414(a)(2)(B). But LaGrange's recitation of the Colorado crime's 

elements was incomplete. The Colorado statute actually provides three ways in which a 

person can commit third-degree assault: (1) "knowingly . . . caus[ing] bodily injury to 

another person"; (2) "or recklessly caus[ing] bodily injury to another person"; or (3) "with 

criminal negligence the person causes bodily injury to another person by means of a 

deadly weapon." Colo. Rev. Stat. § 18-3-204 (2004). The first two ways are comparable 

to the Kansas misdemeanor offense of simple battery, defined under K.S.A. 2011 Supp. 

21-5413(a)(1) as "[k]nowingly or recklessly causing bodily harm to another person." The 

only difference in the two states' statutory language is that Colorado proscribes causing 

"bodily injury," while Kansas proscribes causing "bodily harm." We do not require 

identical statutory language when comparing out-of-state convictions. See State v. 

Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003). In that light, one would be hardpressed to quibble with the comparability of the simple battery portion of the Colorado 

statute, but we must deal with the entire statute.

With respect to the third way to commit third-degree assault in Colorado (with a 

deadly weapon), which LaGrange compared to Kansas' reckless aggravated battery with 

a deadly weapon, the panel did not discuss the respective mental states required for each 

crime. Apparently, that panel just assumed that Colorado's mens rea of "with criminal 
17

negligence" is the equivalent of Kansas' mens rea of "recklessly." That assumption is not 

supported by the law of either state.

To begin, the structure of Colo. Rev. Stat. § 18-3-204 (2004) refutes the notion 

that Colorado equates criminal negligence with recklessness. If the two concepts were 

equivalent, the second phrase of the Colorado statute could be restated as "with 

recklessness, to cause bodily injury by means of a deadly weapon." But that would be 

redundant; the prior phrase already proscribes "recklessly causing bodily injury to 

another person." The only reason for the Colorado Legislature to make a separate 

provision applicable to using a deadly weapon with criminal negligence is to make that 

dangerous act punishable at the same level but with a less culpable state of mind than 

intentionally or recklessly.

Colorado's legislative definitions corroborate that the state does not equate 

criminal negligence with recklessness. The definition of "[c]ulpable mental state" 

separately lists the two terms, to-wit: "intentionally, or with intent, or knowingly, or 

willfully, or recklessly, or with criminal negligence, as these terms are defined in this 

section." Colo. Rev. Stat. § 18-1-501(4) (2004). Then, the definitions of the terms in 

Colo. Rev. Stat. § 18-1-501 (2004) explain the difference between the mental states:

"(3) . . . A person acts with criminal negligence when, through a gross deviation 

from the standard of care that a reasonable person would exercise, he fails to perceive a 

substantial and unjustifiable risk that a result will occur or that a circumstance exists. 

. . . .

"(8) . . . A person acts recklessly when he consciously disregards a substantial 

and unjustifiable risk that a result will occur or that a circumstance exists." (Emphasis 

added.) 
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The Colorado Supreme Court views the difference among mental states as a matter 

of degree of culpability. People v. Hall, 999 P.2d 207, 219 (Colo. 2000) ("Although 

recklessness is a less culpable mental state than intentionally or knowingly, it involves a 

higher level of culpability than criminal negligence."). With respect to the specific 

difference between recklessness and criminal negligence, Hall explained:

"Criminal negligence requires that, 'through a gross deviation from the standard 

of care that a reasonable person would exercise,' the actor fails to perceive a substantial 

and unjustifiable risk that a result will occur or a circumstance exists. § 18-1-501(3); see 

also People v. Jones, 193 Colo. 250, 253-54, 565 P.2d 1333, 1335 (1977) (discussing 

criminally negligent homicide). An actor is criminally negligent when he should have 

been aware of the risk but was not, while recklessness requires that the defendant actually 

be aware of the risk but disregard it. See [People v.] Shaw, 646 P.2d [375], 380 [(Colo. 

1982)]. Thus, even if she should be, a person who is not actually aware that her conduct 

creates a substantial and unjustifiable risk is not acting recklessly." 999 P.2d at 219-20.

Colorado's courts have consistently held that negligence, even in the criminal 

context, is characterized by a degree of inaction rather than a conscious disregard. People 

v. Shaw, 646 P.2d 375, 380 (Colo. 1982) ("The distinction between acting recklessly and 

acting with criminal negligence is the difference between, on the one hand, becoming 

aware yet consciously disregarding a substantial and unjustifiable risk of death from one's 

conduct, and, on the other, failing to perceive, through a gross deviation from the 

reasonable care standard, a substantial and unjustifiable risk that death will result from 

one's conduct."); People v. Ramirez, 18 P.3d 822, 828 (Colo. App. 2000) (criminal 

negligence is when an actor has failed to become aware of the risk of harm; third-degree 

assault not applicable when evidence shows defendant placed a knife to victim's throat 

and victim's finger was cut when she pushed the knife away).
19

The Kansas Legislature's definition of recklessness comports with Colorado's 

requirement that, to be reckless, the actor must be aware of the risk, to-wit: "A person 

acts 'recklessly' or is 'reckless,' when such person consciously disregards a substantial 

and unjustifiable risk that circumstances exist or that a result will follow, and such 

disregard constitutes a gross deviation from the standard of care which a reasonable 

person would exercise in the situation." (Emphasis added.) K.S.A. 2015 Supp. 

21-5202(j).

Likewise, Kansas precedent has held that recklessness requires something more 

than negligence or carelessness. See Robbins v. City of Wichita, 285 Kan. 455, 470, 172 

P.3d 1187 (2007) ("Recklessness is a lesser standard of conduct than intentional conduct 

and requires running a risk substantially greater than the risk which makes the conduct 

merely negligent or careless."); State v. Remmers, 278 Kan. 598, 601-02, 102 P.3d 433 

(2004) (recklessness requires something more than negligence); see also State v. 

Hernandez, 40 Kan. App. 2d 525, 527-28, 193 P.3d 915 (2008). Indeed, the holding in 

Remmers echoes the Colorado definitions: "'It is the concept of conscious disregard that 

distinguishes recklessness from negligence. The negligent actor fails to perceive a risk 

that he ought to perceive. The reckless actor perceives or is conscious of the risk, but 

disregards it.'" (Emphasis added.) Remmers, 278 Kan. at 601-02 (quoting State v. Larson, 

582 N.W.2d 15, 18 [S.D. 1998]). 

Granted, prior panels of the Court of Appeals have apparently equated another 

state's criminal negligence with recklessness in this state. See State v. Farley, No. 

109,655, 2014 WL 5345895, at *8 (Kan. App. 2014) (unpublished opinion), (Missouri 

statute, similar to Colorado statute, deemed equivalent to aggravated battery and 

therefore a person crime for criminal history purposes), rev. denied 302 Kan. 1014

(2015); State v. Maudlin, No. 104,062, 2011 WL 5143041, at *3 (2011) (unpublished 

opinion) (same). But it is the Kansas Legislature that establishes what constitutes a 
20

criminal act in Kansas, not the courts. See State v. Sexton, 232 Kan. 539, 542-43, 

657 P.2d 43 (1983) ("It has been the rule in Kansas that all crimes are established by 

legislative act. There are no common law crimes in the state, and there can be no 

conviction except for such crimes as are defined by statute."). 

Given that our legislature has not criminalized the act of negligently causing 

bodily harm or injury to another person, even with a deadly weapon, LaGrange erred in 

finding that Colorado's third-degree assault was comparable to Kansas' aggravated 

battery. Moreover, there is no Kansas crime that is comparable to the portion of 

Colorado's third-degree assault that proscribes negligently causing bodily injury to 

another person by means of a deadly weapon. Thus, a comparison of the elements of the 

Colorado offense of third-degree assault to the elements of the Kansas offenses of battery 

and aggravated battery do not establish a comparability of the statutes as a whole. 

Moreover, the State has not asked us to find the Colorado statute to be divisible, nor did 

the Court of Appeals explain how to carve out only part of the elements of the out-ofstate conviction. Cf. State v. Dickey, 301 Kan. 1018, 1037, 350 P.3d 1054 (2015) 

(adopting Descamps v. United States, 570 U.S. _______, 133 S. Ct. 2276, 186 L. Ed. 2d 

438 [2013]) (under modified categorical approach, sentencing court permitted to look at 

limited class of documents if predicate crime's statute is divisible). Consequently, given 

that Kansas does not have a comparable offense, under either the 2011 or the 2015 

version of 21-6811(e), the Colorado convictions for third-degree assault should not have 

been used in Rodriguez' criminal history calculation.

Reversed and remanded to the district court for resentencing with a criminal 

history score of D.