1

NOT DESIGNATED FOR PUBLICATION

No. 123,338

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

TRAVIS J. WHITEMAN,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed March 11, 2022.

Affirmed in part, sentence vacated, and case remanded with directions.

Kristen B. Patty, of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before SCHROEDER, P.J., BRUNS and WARNER, JJ.

PER CURIAM: Travis J. Whiteman appeals the district court's denial of his 

presentence motion to withdraw plea and the district court's denial of his motion 

challenging his criminal history score. Upon extensive review of the record before us, we 

find the district court did not abuse its discretion by denying Whitman's second motion to 

withdraw his plea. However, we find the district court improperly scored Whiteman's 

three prior Texas felonies for possession of child pornography as person felonies in 

Kansas to establish his criminal history score. Therefore, we affirm in part, vacate 

Whiteman's sentence, and remand for resentencing.
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FACTS

In March 2017, Travis J. Whiteman, a then-31-year-old man, posed as a 14-yearold boy on a dating website and requested a "sexy pic" from an account profile of a 14-

year-old female. Whiteman specifically asked the girl to send a picture of her "tits." The 

record reflects the female profile either belonged to an undercover police officer or was 

flagged and then sent to a police detective. The State charged Whiteman with sexual 

exploitation of a child, in violation of K.S.A. 2016 Supp. 21-5510(a)(1), a severity level 5

person felony.

Whiteman waived his preliminary hearing and initially pled not guilty. Based on 

plea negotiations, Whiteman entered a plea of guilty to sexual exploitation of a child in 

October 2018. As part of the plea agreement, the State agreed not to charge Whiteman 

with prior violations of the Kansas Offender Registration Act (KORA), K.S.A. 2016 

Supp. 22-4901 et seq., and further agreed to recommend the low sentencing number in 

the appropriate grid box. Prior to sentencing, Whiteman was allowed to withdraw his plea 

based on a mutual mistake between him and the State as to the application of the 

persistent sex offender special rule under K.S.A. 2016 Supp. 21-6804(j). The special rule 

required the district court to double the defendant's sentence under the revised Kansas 

Sentencing Guidelines Act (KSGA), K.S.A. 2016 Supp. 21-6801 et seq. Whiteman's case 

was then placed back on the trial docket.

In September 2019, Whiteman entered into a second plea agreement, and the 

district court conducted another plea hearing. Like his first plea hearing, Whiteman 

confirmed he had consumed no drugs, alcohol, or medication affecting his ability to 

understand the proceeding. The district court once again went over Whiteman's rights and 

the consequences of entering a plea. The district court specifically asked about

Whiteman's satisfaction with his attorney:
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"THE COURT: You are represented in this case by Miss McFerren and Miss 

Mitchell; is that correct?

"THE DEFENDANT: Yes, sir.

"THE COURT: Have you had enough time to discuss with these attorneys the 

charges filed against you, your rights in this case and the consequences of changing your 

plea?

"THE DEFENDANT: Yes, sir.

"THE COURT: Are you satisfied with the services of both attorneys in this 

case?

"THE DEFENDANT: Miss McFerren, I'm about halfway 50 percent with her.

"THE COURT: Okay. Do you believe that you are—that she has provided the 

type of services in this case that you are comfortable going forward with this plea?

"THE DEFENDANT: Yes, sir.

"THE COURT: Okay. Do you have anything further to discuss with Miss 

Mitchell at this point with regard to your rights in this case?

"THE DEFENDANT: No sir.

"THE COURT: Do you wish a break in this case to discuss anything further with 

your attorney?

"THE DEFENDANT: No, sir."

Whiteman confirmed it was solely his decision to sign the acknowledgment of 

rights and entry of plea, he had ample time to review the documents completely with his 

attorney, and he was aware of his possible sentence under the persistent sex offender 

special rule. Just as in Whiteman's first plea hearing, the district court explained the terms 

of the plea agreement on the record. In exchange for a successful guilty plea, the State 

agreed not to charge Whiteman for violating KORA and, though his sentence would 

double under the persistent sex offender special rule, the State would recommend the low 

number in the appropriate grid box as his sentence before it was doubled. Whiteman pled

guilty.

The district court explained the State's charge against Whiteman as alleged in the 

charging document, just as it had done in Whiteman's first plea hearing. Whiteman stated 
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he believed the allegations in Count 1—sexual exploitation of a child—were true. The 

district court again found:

• Whiteman understood the nature of the charge against him, the consequences 

of his plea, and the possible penalties he faced by entering a guilty plea;

• Whiteman had knowingly, willingly, and voluntarily waived his constitutional 

rights, including the right to a jury trial, by entering a guilty plea; and

• a factual basis existed to accept Whiteman's plea.

The district court accepted Whiteman's guilty plea and convicted him of sexual 

exploitation of a child. The district court further determined it could still use the 

presentence investigation (PSI) report it had ordered after Whiteman's first guilty plea. 

The PSI report reflected Whiteman's criminal history score was A based on his three 

prior Texas convictions for possession of child pornography.

Whiteman timely filed a motion asking for a departure sentence, arguing he 

accepted responsibility for his actions, saving the State time by not trying his case before 

a jury; he was "'an excellent candidate for specific sex offender treatment available in the 

community,'" which would help reduce the likelihood of recidivism; and his entire 

criminal history arose out of a single case in 2013.

Whiteman also began an extensive pro se motion practice with a pro se "Notice to 

the Court . . . by and through jail house counsel," alleging a lack of timely and 

meaningful communication with his defense counsel, Dwayna McFerren. Whiteman 

claimed, among other things, his counsel did not account for Whiteman's desire to 

meaningfully participate in his defense; failed to consult with him when scheduling 

hearings; continued judicial proceedings without his consent; failed to respond to letters; 

and failed to provide requested documents related to his defense. Whiteman alleged his 
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counsel "seems to miss a lot of important rules or facts" and failed to inform him of all 

reasonable defenses.

Shortly after Whiteman filed his pro se notice to the court, his counsel filed a 

motion to challenge Whiteman's criminal history. The motion asserted the crimes listed in 

Whiteman's PSI report were in error and, even if the contested entries did exist, his prior 

Texas crimes should not be person felonies because there was no comparable Kansas 

crime. Whiteman then filed a pro se motion to withdraw his plea and correct his criminal 

history score. Whiteman essentially mimicked his counsel's motion challenging his 

criminal history score and alleged an improper criminal history score invalidated his plea 

agreement. His pro se motion was once again signed by "jail house counsel."

About 10 days later, Whiteman filed a pro se "letter to the court." Whiteman cited 

several cases from other jurisdictions and argued, in part, mere nudity did not constitute 

child pornography and his request for nude photographs was not unlawful. Whiteman 

acknowledged he made a poor decision but claimed his actions were not illegal. He also

argued his request for the young girl to send him a photograph was vague and, by asking 

her to "show [Whiteman her] tits," he was not necessarily seeking a nude photograph.

Whiteman then filed a pro se motion for judgment of acquittal, essentially 

claiming actual innocence and arguing his request for mere nudity did not amount to 

child pornography. Whiteman cited several cases suggesting nudity, without more, 

constituted a protected expression under the First Amendment to the United States 

Constitution. He also contended the district court could not accept his plea because there 

was an insufficient factual basis to establish the crime.

In June 2020, the district court held a hearing on Whiteman's motion to withdraw 

his second plea of guilty. Whiteman testified he had seen his defense counsel two to three 

times before waiving his preliminary hearing. However, he provided conflicting 
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testimony. Whiteman explained his counsel never discussed waiving his preliminary 

hearing with him but also testified his counsel explained why he should consider waiving

his preliminary hearing. Whiteman confirmed his counsel had provided him with the 

discovery in his case and discussed what could happen if he proceeded to jury trial.

Whiteman acknowledged he had accepted his original plea agreement with the 

State, the district court permitted him to withdraw his plea, and he later entered a second 

plea agreement. Whiteman again admitted he knew the potential penalties he could face 

when he entered the second plea agreement. He claimed his attorney never discussed with 

him whether he should plead or proceed to trial.

Whiteman claimed he sent letters to his counsel asking about potential defenses in 

his case and those letters were either ignored or lost in the mail. Whiteman admitted he 

met with his counsel in the jail about six times. He recalled the district judge went over 

the plea agreement with him at the second plea hearing and discussed the consequences 

of his plea but did not follow up on his dissatisfaction with counsel. Whiteman claimed 

his current dissatisfaction arose from unanswered questions about his plea and because 

his counsel had another attorney stand in for her at the hearing.

While in jail, Whiteman conducted his own research and wanted to withdraw his 

second plea based on a claim of actual innocence and competency of counsel for failing 

to bring any defenses to his attention. Whiteman admitted when he entered his second 

plea he wanted to do so, though reluctantly. Whiteman stated his counsel made no 

promises she would successfully obtain a lesser sentence but would still ask the district 

court.

McFerren was called to testify. Her testimony reflected that after she reviewed the 

discovery with Whiteman, Whiteman waived his preliminary hearing because it 

prevented the State from charging him with a more serious offense: specifically, 
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Whiteman had failed to register as a sex offender based on his prior Texas convictions for 

possession of child pornography. McFerren also discussed with Whiteman the possibility 

of working out a plea agreement.

McFerren received the first plea offer from the State and presented it to Whiteman.

He agreed with it. McFerren testified it was common for a colleague to appear in court on 

her behalf to enter a plea in her cases. Still, before the hearing, McFerren personally went 

over the acknowledgment of rights and plea agreement with Whiteman in jail. Whiteman 

knew the State was not going to charge him for failing to register as a sex offender and 

determined he wanted to enter a plea. After the first plea agreement was withdrawn, 

McFerren tried to negotiate more favorable language in the plea agreement but was 

unable to do so. Whiteman signed the second plea agreement in the jail with McFerren

present after it was again explained to him.

McFerren learned of Whiteman's dissatisfaction with her toward the end of her 

representation when she went to discuss the motion challenging his criminal history. 

Whiteman told McFerren he had filed a motion to have her removed as counsel but 

decided to withdraw that motion. McFerren never threatened Whiteman to enter a plea, 

never made promises outside the plea agreement, never promised a probation sentence, 

and never promised a successful criminal history challenge.

McFerren discussed the risks associated with a jury trial and the fact the State 

could present evidence of his prior Texas offenses, which could be devastating to his 

defense. Based on the information McFerren provided, Whiteman again chose to enter a 

plea. Whiteman never proffered a claim of actual innocence to McFerren. The district 

court requested a transcript of Whiteman's second plea hearing and continued the hearing

on Whiteman's motion to withdraw his plea.
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In a written motion minutes sheet, the district court found McFerren's testimony 

was credible and Whiteman's was not. The district court specifically explained:

"First, the Court finds that Ms. McFerren is competent counsel. Ms. McFerren

has been a criminal defense attorney in the Public Defender's office for 4 1/2 years. She 

met with [Defendant] on repeated occasions, as confirmed by Defendant, and guided him 

through not one but two plea hearings. . . . Defendant testified that he was '50/50' with 

Ms. McFerren, when the Court inquired at the second plea hearing whether he was 

satisfied with Ms. McFerren as his counsel. At the hearing on the Motion to Withdraw 

Plea, Defendant testified that the Court did not follow up or inquire about this statement. 

Defendant's statement is not credible. The record reflects that the Court followed up with 

three additional questions to clarify that Defendant was satisfied with Ms. McFerren, and 

proceeded only after Defendant assured the Court that he was comfortable going forward, 

that he had nothing further to discuss with counsel, and that he did not wish a break in the 

proceedings to speak to counsel. Defendant's testimony in contradiction to the record is 

not credible. Ms. McFerren discussed defenses and his criminal history with the 

Defendant.

"Further, Ms. McFerren is credible when she testified that Defendant only now 

brings up the topic of actual innocence, and never brought up the subject throughout the 

two plea hearings. It is clear that Defendant had all of the discovery, had a chance to 

review it, and met with Ms. McFerren in the jail at least six times.

"Finally, the Court went over the [Acknowledgment] of Rights and Entry of Plea 

form with Defendant on the record. He signed the document and acknowledged that he 

went over it with counsel and understood it.

"Second, there is no evidence that Defendant was misled, coerced, mistreated or 

taken advantage of. Defendant knew his criminal history score was A, knew he would be 

deemed a persistent sex offender, and that his status [as] such would double his sentence.

"Third, the plea was fairly and understandingly made. The parties agreed that 

Defendant should be allowed to withdraw the first plea, and the Court ordered it. The 

benefit for Defendant was that his rights were explained not once but twice. He knew his 

rights and chose to enter the second plea. His claims about discovering defenses after the 

plea was entered is speculative. These do not persuade this Court that his plea was not 

made fairly and understandingly."
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The district court denied Whiteman's motion to withdraw his second plea, finding 

he failed to show good cause under K.S.A. 2019 Supp. 22-3210(d)(1). Whiteman's new 

counsel filed a motion for judgment of acquittal, adopting the arguments Whiteman had 

made in his pro se motion. Whiteman's counsel also filed a motion to find KORA 

registration requirements cruel and unusual punishment.

The district court granted Whiteman a downward durational departure as the 

parties agreed to in the plea agreement and sentenced him based on his criminal score of 

A to 61 months' imprisonment, which was then doubled under the persistent sex offender 

special rule for a controlling term of 122 months' imprisonment. The district court 

reasoned the harm was less than typical as it did not appear Whiteman received the 

photograph he was seeking, and the young girl may have been an undercover police 

officer. The district court denied Whiteman's motion to find KORA registration 

requirements cruel and unusual punishment, his motion for judgment of acquittal, and his 

motion challenging his criminal history score.

ANALYSIS

I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION TO DENY WHITEMAN'S 

SECOND PRESENTENCE MOTION TO WITHDRAW HIS PLEA.

Whiteman argues he was unable to discuss any potential defense with his trial 

counsel despite admitting he consulted with his attorney multiple times. After entering 

his second plea, Whiteman believed he discovered a potential defense his attorney failed 

to discuss with him. He explained in his second motion to withdraw his plea he believed 

the facts alleged in the probable cause affidavit did not constitute a crime and the denial 

of his motion to withdraw his plea must be reversed.
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The State responds Whiteman's argument is meritless as the factual basis for his 

plea did not stem from the probable cause affidavit. The State contends the factual basis 

for Whiteman's plea was established by the district court reading the complaint and 

Whiteman agreeing the allegations were true.

When the district court denies a defendant's motion to withdraw a plea before 

sentencing, the defendant must establish on appeal how the district court abused its 

discretion in denying the motion. "A judicial action constitutes an abuse of discretion if 

(1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is 

based on an error of fact. [Citation omitted.]" State v. Frazier, 311 Kan. 378, 381, 461 

P.3d 43 (2020). "Appellate courts do not reweigh the evidence or assess witness 

credibility. Instead, appellate courts give deference to the trial court's findings of fact. 

[Citation omitted.]" State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).

Whiteman bears the burden to establish the district court erred in denying his presentence 

motion to withdraw his plea. See State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 

(2008). Further,

"[e]ntry of a plea of guilty or nolo contendere necessarily implies acknowledgment by all 

concerned—the defendant, the State, and the court—that a jury could go either way and 

that a risk-benefit analysis has taken place on both sides. The prosecution and the defense 

have something to gain and something to lose in any plea bargain." State v. Green, 283 

Kan. 531, 547, 153 P.3d 1216 (2007).

"[A] defendant should not get relief from a plea decision simply because he or she 

determines, in hindsight, that it was not the most intelligent course of action." Schow, 287 

Kan. at 542.

Under K.S.A. 2020 Supp. 22-3210(d)(1), a guilty plea may be withdrawn before 

sentencing "for good cause shown and within the discretion of the court . . . ." When 

determining whether a defendant has shown good cause, a district court should consider 
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"whether '(1) the defendant was represented by competent counsel, (2) the defendant was 

misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly 

and understandingly made.' [Citations omitted.]" State v. Edgar, 281 Kan. 30, 36, 127

P.3d 986 (2006). Other non-Edgar factors that could impact a plea withdrawal should not 

be ignored. Frazier, 311 Kan. at 381. A claim of innocence may support good cause to 

withdraw a plea. State v. Garcia, 295 Kan. 53, 63, 283 P.3d 165 (2012).

On appeal, Whiteman does not maintain his prior arguments alleging incompetent 

counsel, nor does he claim he was misled, coerced, mistreated, or unfairly taken 

advantage of. Whiteman, therefore, waives and abandons any such argument on appeal as 

it specifically relates to the first two Edgar factors. See State v. Arnett, 307 Kan. 648, 

650, 413 P.3d 787 (2018) (issue not briefed deemed waived or abandoned).

Whiteman now contends he can challenge the factual basis supporting his plea 

through a motion to withdraw plea. This argument falls under the third Edgar factor 

about whether the plea was fairly and understandingly made. We interpret Whiteman's 

argument on appeal as a challenge of the sufficiency of the factual basis for his plea and 

potentially setting forth an argument claiming actual innocence.

Whiteman's brief fails to directly assert a claim of actual innocence, and any 

incidental claim of actual innocence is vague and convoluted. This potential claim, if one 

exists at all, is not adequately briefed and, therefore, waived or abandoned. See State v. 

Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019).

This leaves us with Whiteman's claim the factual basis to support his plea was 

insufficient. The district court simply explained, "[T]here [was] a factual basis put forth 

at the time of the plea and [Whiteman] agreed with that." Whiteman agreed with the 

State's allegations in the charging document.
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We observe that Whiteman's argument is not well developed. The issue is 

complicated by the fact Whiteman was clearly aware of the factual basis supporting his 

plea, as he argued in a pro se motion to the district court that the probable cause affidavit 

was insufficient to support his plea, but his plea was not based on the probable cause 

affidavit. Whiteman has not properly framed or briefed the argument regarding the 

sufficiency of the allegations in the charging document as a factual basis for his plea. His 

brief on this issue is limited to one paragraph. Accordingly, we find Whiteman waived or 

abandoned his claim by failing to adequately brief the issue on appeal. See Salary, 309 

Kan. at 481.

The record reflects that after Whiteman was allowed to withdraw his first plea, 

Whiteman knew the basis of the charges against him, the benefit he was receiving by his 

plea, and the potential penalties, including the special rule which would double his 

sentence. Whiteman had reviewed the acknowledgment of rights twice over the span of 

two years with his attorney and went over the plea agreement with two different district 

judges. Both district judges advised Whiteman of his rights, and Whiteman entered a 

guilty plea both times. Whiteman, while relying on the third Edgar factor—the plea was 

not fairly and understandingly made—has not met his burden to show the district court 

abused its discretion when it denied his presentence motion to withdraw his guilty plea.

II. WHITEMAN'S CRIMINAL HISTORY SCORE IS INCORRECT.

Whiteman next argues the district court erred in scoring his three Texas possession 

of child pornography convictions as person felonies when it calculated his criminal 

history score and in classifying him as a persistent sex offender. Whiteman asks us to 

vacate his sentence and remand to the district court for a new sentencing hearing. The 

State responds Whiteman's prior Texas convictions for possessing child pornography 

were properly classified as person felonies. The State explains the Texas offense of 
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possession of child pornography Whiteman was convicted of is identical to or narrower 

than the Kansas offense of sexual exploitation of a child.

Whether a sentence is illegal under K.S.A. 2020 Supp. 22-3504 turns on 

interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 

Supp. 21-6801 et seq. See State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016). An 

"'[i]llegal sentence,'" as defined by K.S.A. 2020 Supp. 22-3504(c)(1), is "a sentence: 

[i]mposed by a court without jurisdiction; that does not conform to the applicable 

statutory provision, either in character or punishment; or that is ambiguous with respect 

to the time and manner in which it is to be served at the time it is pronounced." To 

determine whether a prior conviction should be designated as a person or nonperson 

offense involves interpretation of the KSGA, which is a question of law subject to 

unlimited review. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).

Calculating criminal history score based on a comparable offense in another state

All felony convictions and adjudications occurring prior to the current sentencing 

are considered when calculating a criminal history score. Wetrich, 307 Kan. at 555. "If a 

crime is a felony in the convicting jurisdiction, it will be counted as a felony in Kansas."

K.S.A. 2020 Supp. 21-6811(e)(2)(A). The parties agree Whiteman's Texas convictions 

for possession of child pornography under Tex. Penal Code § 43.26 (2012) were felony 

offenses, making the crimes felonies in Kansas for calculating his criminal history score.

See Tex. Penal Code § 43.26(d).

A crime is also designated as person or nonperson. K.S.A. 2020 Supp. 21-

6811(e)(3). When considering an out-of-state conviction for classifying a defendant's 

criminal history score, the district court must refer to the Kansas Criminal Code in effect 

on the date the current crime of conviction was committed to find a comparable offense. 

An out-of-state conviction is considered a nonperson crime if there is no comparable 
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Kansas offense in effect on the date the defendant committed the current crime of 

conviction. K.S.A. 2020 Supp. 21-6811(e)(3)(A). Our Supreme Court explained that "the 

elements of the out-of-state crime cannot be broader than the elements of the Kansas 

crime. In other words, the elements of 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. at 562.

Whiteman's PSI report showed he was convicted in August 2013 of three counts of 

possession of child pornography under Tex. Penal Code Ann. § 43.26 for acts committed 

in August 2012. The State supplemented the record on appeal to include certified 

documents from Williamson County, Texas, regarding Whiteman's three prior Texas 

convictions. At Whiteman's sentencing hearing, the State admitted the certified 

documents without objection. The district court determined the Kansas crime of sexual 

exploitation of a child was a comparable Kansas offense under Wetrich.

The State correctly points out Tex. Penal Code Ann. § 43.26 contained two 

separate crimes—possession of child pornography under subsection (a) and promotion of 

child pornography under subsection (e). On appeal, both parties reference Whiteman's

prior Texas convictions fell under Tex. Penal Code Ann. § 43.26(a), possession of child 

pornography.

To determine whether the district court should classify Whiteman's Texas 

possession of child pornography convictions as person or nonperson offenses, the 

elements of the Texas crime must be compared with the elements of the comparable 

Kansas offense in March 2017, when Whiteman committed his current crime of 

conviction.

Tex. Penal Code Ann. § 43.26(a) stated the crime of possession of child 

pornography has been committed if:
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"(1) the person knowingly or intentionally possesses visual material that visually 

depicts a child younger than 18 years of age at the time the image of the child was made 

who is engaging in sexual conduct; and

"(2) the person knows that the material depicts the child as described by 

Subdivision (1)."

K.S.A. 2016 Supp. 21-5510(a)(2) defined sexual exploitation of a child as: 

"[P]ossessing any visual depiction of a child under 18 years of age shown or heard 

engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or 

appeal to the prurient interest of the offender or any other person."

Whiteman argues the Texas crime of possession of child pornography is not 

comparable to the Kansas crime of sexual exploitation of a child. Specifically, Whiteman

claims Texas' definition of sexual conduct is broader than Kansas' definition of sexually 

explicit conduct.

In Texas:

• "'Sexual conduct' means sexual contact, actual or simulated sexual 

intercourse, deviate sexual intercourse, sexual bestiality, masturbation, 

sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or 

any portion of the female breast below the top of the areola." Tex. Penal 

Code Ann. § 43.25(a)(2) (2012).

• "'Simulated' means the explicit depiction of sexual conduct that creates 

the appearance of actual sexual conduct and during which a person 

engaging in the conduct exhibits any uncovered portion of the breasts, 

genitals, or buttocks." Tex. Penal Code Ann. § 43.25(a)(6) (2012).
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• "'Deviate sexual intercourse' means any contact between the genitals of 

one person and the mouth or anus of another person." Tex. Penal Code 

Ann. § 43.01(1) (2012).

• "'Sexual contact' means any touching of the anus, breast, or any part of 

the genitals of another person with intent to arouse or gratify the sexual 

desire of any person." Tex. Penal Code Ann. § 43.01(3) (2012).

In Kansas:

• "'Sexually explicit conduct' means actual or simulated: Exhibition in the 

nude; sexual intercourse or sodomy, including genital-genital, oralgenital, anal-genital or oral-anal contact, whether between persons of 

the same or opposite sex; masturbation; sado-masochistic abuse with the 

intent of sexual stimulation; or lewd exhibition of the genitals, female 

breasts or pubic area of any person." K.S.A. 2016 Supp. 21-5510(d)(1).

• "'[N]ude' means any state of undress in which the human genitals, pubic 

region, buttock or female breast, at a point below the top of the areola, is 

less than completely and opaquely covered." K.S.A. 2016 Supp. 21-

5510(d)(4).

Whiteman's argument focuses on the term sexual conduct. In Texas, sexual 

conduct includes sexual bestiality, but sexually explicit conduct in Kansas does not 

include sexual bestiality. Whiteman admits the Kansas statute for sodomy, K.S.A. 2016 

Supp. 21-5501(b), includes "oral or anal copulation or sexual intercourse between a 

person and an animal," but the Kansas Legislature did not include such definition in the 

sexual exploitation of a child statute.
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Whiteman is correct the Texas statute for possession of child pornography under 

which Whiteman was convicted includes bestiality, making it broader than the 

comparable Kansas statute which does not include such sexual conduct. Compare Tex. 

Penal Code Ann. § 43.25(a)(2) with K.S.A. 2016 Supp. 21-5510(d)(1). The State 

included the charging documents from Whiteman's prior Texas convictions in the record 

on appeal, but, under State v. Gales, 312 Kan. 475, 485, 476 P.3d 412 (2020), we must

compare the statutes on an elements-to-elements basis without reference to the evidence 

surrounding prior convictions. Based solely on an elements-to-elements comparison, 

without reference to the evidence surrounding Whiteman's prior Texas convictions, the 

Texas statute is broader than the Kansas statute. Therefore, the district court erred in 

rejecting Whiteman's challenge to his criminal history score because the conduct 

underlying his three prior out-of-state convictions for possession of child pornography 

was broader than the conduct prohibited by the comparable Kansas statute—here, K.S.A. 

2016 Supp. 21-5510(a)(2)—in effect at the time of his current crime of conviction. See 

Wetrich, 307 Kan. at 562. The district court improperly scored Whiteman's three Texas 

convictions for possession of child pornography as person felonies to establish his 

criminal history score. Accordingly, we vacate Whiteman's sentence and remand to the 

district court to resentence Whiteman with his prior Texas child pornography convictions 

to be scored as nonperson felonies.

We pause to note that we appreciate the logic of the State's critique of Wetrich as it 

applies to crimes committed directly involving another person. But, as Whiteman 

correctly notes in his reply brief, we must apply Wetrich as we are duty-bound to follow 

our Supreme Court precedent unless there is some indication our Supreme Court is 

departing from its previous position. See State v. Rodriguez, 305 Kan. 1139, 1144, 390 

P.3d 903 (2017). We observe no indication our Supreme Court intends to depart from its 

previous position in Wetrich. Here, this is especially concerning because the conduct 

prohibited by Tex. Penal Code Ann. § 43.26 is essentially identical to the conducted 

prohibited by K.S.A. 2016 Supp. 21-5510(a)(2), except for the additional conduct 
18

included in the Texas statute—depictions of a child engaged in "sexual bestiality." Tex. 

Penal Code Ann. § 43.25(a)(2).

As previously noted, under K.S.A. 2016 Supp. 21-5501(b), sexual acts between a 

person and an animal would constitute the person felony of criminal sodomy. Thus, it 

seems something of an absurd result that we are compelled to score Whiteman's prior 

Texas convictions as nonperson felonies simply because the Texas statute includes 

additional conduct that would be a person felony under another Kansas statute. In other 

words, because the Texas statute includes conduct that is a person felony under two 

different Kansas statutes, under Wetrich, we are forced to score it as a nonperson felony. 

We seriously question whether the Legislature intended such a result, especially given 

our Supreme Court's recognition the KSGA should be interpreted in a manner consistent 

with the Legislature's intent "for sentences to reflect ever-evolving sentencing 

philosophies and correction goals." State v. Keel, 302 Kan. 560, 588, 357 P.3d 251 

(2015). We hope our Supreme Court will provide appropriate guidance for cases such as 

this, which seemingly are not expressly contemplated by the KSGA or our Supreme 

Court's interpretation of the KSGA under Wetrich.

Affirmed in part, sentence vacated, and case remanded for resentencing.