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NOT DESIGNATED FOR PUBLICATION

No. 125,549

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS, 

Appellee,

v.

VICTOR R. CHAPPELL, 

Appellant. 

MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Submitted without oral 

argument. Opinion filed November 9, 2023. Affirmed. 

Kristen B. Patty, of Wichita, for appellant. 

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, 

attorney general, for appellee. 

Before COBLE, P.J., MALONE and WARNER, JJ.

PER CURIAM: Victor R. Chappell appeals his sentence after pleading guilty to one 

count of aggravated battery. Chappell claims the district court erred in classifying two 

2009 Oklahoma convictions for eluding a police officer as person crimes in determining 

his criminal history score. The State argues that both out-of-state convictions were 

properly classified as person crimes under the plain language of K.S.A. 2020 Supp. 21-

6811(e)(3)(B)(i)(d). We agree with the State and affirm the district court's judgment.
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FACTS

On July 7, 2021, the State charged Chappell with one count of aggravated robbery

committed in May 2021. Chappell later pleaded no contest to a reduced charge of 

aggravated battery. The presentence investigation (PSI) report scored Chappell's criminal 

history as A. The PSI report included 37 prior convictions. Chappell objected to entries 

11, 23, and 29, all out-of-state convictions, which he argued were improperly scored as 

person felonies under K.S.A. 2020 Supp. 21-6811(e).

At the sentencing hearing on April 28, 2022, the parties agreed that entry 11, an

Oklahoma conviction for assault and battery against a detention officer, was a 

misdemeanor and no longer in dispute for scoring purposes. The district court then heard 

argument on whether entries 23 and 29, both for eluding a police officer in Oklahoma, 

were person crimes. The State admitted into evidence certified journal entries of both 

convictions. The State argued that the Oklahoma convictions should be scored as person 

felonies under K.S.A. 2020 Supp. 21-6811(e)(3)(B)(i)(d) because the crimes required the 

presence of a person, other than the defendant, a charged accomplice, or another person 

with whom the defendant is engaged in a drug transaction.

The Oklahoma statute, Okla. Stat. tit. 21, § 540A, which has not been amended 

since Chappell's convictions, defines the offense of eluding a police officer. The statute 

includes three subsections. Subsection A defines a misdemeanor offense and subsections 

B and C define felony offenses. Subsections B and C both require danger or risk of harm 

to another person. Okla. Stat. tit. 21, § 540A. Because Chappell did not dispute that he

was convicted of felony offenses, the State argued that either subsection under which 

Chappell could have been convicted required the presence of another person. As a result,

both convictions had to be person felonies for criminal history purposes.
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Chappell agreed that K.S.A. 2020 Supp. 21-6811(e)(3)(B)(i)(d) defined a person 

crime as involving any other person besides "the defendant, a charged accomplice or 

another person with whom the defendant is engaged in the sale, distribution or transfer of 

a controlled substance or non-controlled substance." Chappell assumed the other person 

involved in his offenses were the police officers being eluded, and he argued the presence 

of a police officer does not satisfy the spirit of K.S.A. 2020 Supp. 21-6811(e)(3)(B)(i)(d). 

The district court agreed with the State and found that because subsections B and C of the 

Oklahoma statute required the presence of another person and because Chappell had to 

have been convicted under one of those subsections, the convictions must be scored as 

person felonies under K.S.A. 2020 Supp. 21-6811(e)(3)(B)(i)(d).

After resolving Chappell's objections to the PSI report, the district court found that 

Chappell had a criminal history score of B. The district court sentenced Chappell to a 31-

month term of imprisonment with 12-months' postrelease supervision. Chappell later 

moved to withdraw his plea. The district court denied the motion after holding an 

evidentiary hearing. Chappell timely appealed the district court's judgment.

ANALYSIS

Chappell's sole claim on appeal is that the district court erred in classifying his 

2009 Oklahoma convictions for eluding a police officer as person felonies. Chappell

claims that categorizing the police officers in those offenses as the other person under 

K.S.A. 2020 Supp. 21-6811(e)(3)(B)(i)(d) violates "the spirit" of the law. We note that 

under the statement of the case section of his brief, Chappell states that he is also 

appealing "the denial of his motion to withdraw plea." But Chappell does not address—or 

even mention—this claim in the rest of his brief. An issue not briefed is waived or 

abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021).
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The State argues that both Oklahoma convictions of eluding a police officer were 

properly scored as person felonies under the plain language of K.S.A. 2020 Supp. 21-

6811(e)(3)(B)(i)(d). As a result, the State contends that Chappell receive a legal sentence.

"Classification of prior offenses for criminal history purposes involves 

interpretation of the [Revised Kansas Sentencing Guidelines Act]; statutory interpretation 

is a question of law subject to unlimited review." State v. Wetrich, 307 Kan. 552, 555, 

412 P.3d 984 (2018). We review de novo whether a prior conviction was properly 

classified as a person or nonperson crime for criminal history purposes. State v. Dickey, 

301 Kan. 1018, 1034, 350 P.3d 1054 (2015).

The most fundamental rule of statutory construction is that the intent of the 

Legislature governs if that intent can be determined. State v. LaPointe, 309 Kan. 299, 

314, 434 P.3d 850 (2019). An appellate court must first try to ascertain legislative intent 

through the statutory language enacted, giving common words their ordinary meanings. 

State v. Ayers, 309 Kan. 162, 163-64, 432 P.3d 663 (2019). When a statute is plain and 

unambiguous, an appellate court should not speculate about the legislative intent behind 

that clear language, and it should avoid reading something into the statute that is not 

readily found in its words. 309 Kan. at 164. Where there is no ambiguity, the court need 

not resort to statutory construction. Only if the statute's language of text is unclear or 

ambiguous does the court use canons of construction or legislative history to construe the 

Legislature's intent. State v. Pulliam, 308 Kan. 1354, 1364, 430 P.3d 39 (2018).

K.S.A. 2020 Supp. 21-6811(e)(3)(B)(i)(d) proscribes that an out-of-state felony 

conviction shall be classified as a person felony if it involves "the presence of a person, 

other than the defendant, a charged accomplice or another person with whom the 

defendant is engaged in the sale, distribution or transfer of a controlled substance or noncontrolled substance." The parties do not dispute that both of Chappell's Oklahoma
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offenses for eluding a police officer were felonies. Instead, they dispute whether the 

offenses are person or nonperson felonies.

Chappell was convicted of two felonies for eluding a police officer in accordance 

with Okla. Stat. tit. 21, § 540A. The statute provides:

"A. Any operator of a motor vehicle who has received a visual and audible 

signal, a red light and a siren from a peace officer driving a motor vehicle showing the 

same to be an official police, sheriff, highway patrol or state game ranger vehicle 

directing the operator to bring the vehicle to a stop and who willfully increases the speed 

or extinguishes the lights of the vehicle in an attempt to elude such peace officer, or 

willfully attempts in any other manner to elude the peace officer, or who does elude such 

peace officer, is guilty of a misdemeanor. . . .

"B. Any person who violates the provisions of subsection A of this section in 

such manner as to endanger any other person shall be deemed guilty of a felony 

punishable by imprisonment in the State Penitentiary for a term of not less than one (1) 

year nor more than Oklahoma Statutes - Title 21. Crimes and Punishments Page 138 five 

(5) years, or by a fine of not less than One Thousand Dollars ($1,000.00) nor more than 

Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment.

"C. 1. Any person who causes an accident, while eluding or attempting to elude 

an officer, resulting in great bodily injury to any other person while driving or operating a 

motor vehicle within this state and who is in violation of the provisions of subsection A

of this section may be charged with a violation of the provisions of this subsection. Any 

person who is convicted of a violation of the provisions of this subsection shall be 

deemed guilty of a felony punishable by imprisonment in a state correctional institution 

for not less than one (1) year and not more than five (5) years, and a fine of not more than 

Five Thousand Dollars ($5,000.00)." Okla. Stat. tit. 21, § 540A.

The State argues that there was necessarily a police officer involved in both of 

Chappell's convictions under the Oklahoma statute and a police officer falls within the 

definition provided in K.S.A. 2020 Supp. 21-6811(e)(3)(B)(i)(d). Therefore, the State 

argues that Chappell's convictions must be scored as person felonies.
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Chappell renews the argument he made in district court. He acknowledges the 

language of K.S.A. 2020 Supp. 21-6811(e)(3)(B)(i)(d) and concedes that his Oklahoma 

convictions of eluding a police officer required the presence of the police officers being 

eluded. But Chappell argues that the presence of a police officer does not satisfy "the 

spirit" of K.S.A. 2020 Supp. 21-6811(e)(3)(B)(i)(d). Thus, he claims that his Oklahoma 

convictions of eluding a police officer should be classified as nonperson felonies.

Chappell's argument is contrary to the text of the statute. K.S.A. 2020 Supp. 21-

6811(e)(3)(B)(i)(d) says that an out-of-state conviction will be classified as a person 

crime if the elements of the offense establish that the crime involves the presence of a 

person other than (1) the defendant, (2) a charged accomplice, or (3) another person with 

whom the defendant is engaged in the sale, distribution, or transfer of a controlled 

substance or a noncontrolled substance. A police officer does not fall into one of these 

categories, so a police officer qualifies as "the presence of a person" making the out-ofstate conviction a person crime under K.S.A. 2020 Supp. 21-6811(e)(3)(B)(i)(d).

This court addressed a similar issue in State v. Baker, 58 Kan App. 2d 735, 742-

46, 475 P.3d 24 (2020). Baker was convicted of resisting arrest in Missouri. In a later

criminal proceeding in Kansas, Baker objected to the PSI report calculating the Missouri 

conviction as a person felony. The State argued, as it does in Chappell's case, that the 

police officer involved in the resisting arrest offense satisfied the definition in K.S.A. 

2020 Supp. 21-6811(e)(3)(B)(i)(d). The Baker court agreed with the State and found:

"Baker fled from one or more police officers. The police officers were present during 

commission of the crime because they were trying to arrest Baker, and Baker fled from 

them. The police officers are not Baker, they were not charged accomplices of Baker's, 

and they were not assisting Baker in certain drug dealings. So Baker's prior conviction 

was properly calculated as a person offense under subsection (d)." 58 Kan. App. 2d at 

746.
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Chappell concedes that the holding in Baker is contrary to his position and 

supports the State's argument that Chappell's Oklahoma convictions of eluding a police 

officer should be scored as person crimes. Alternatively, the State argues that the

convictions of eluding a police officer can be classified as person crimes under other 

subsections of K.S.A. 2020 Supp. 21-6811(e). We decline to address those arguments.

In sum, Chappell does not contest that a police officer was present during the 

commission of the Oklahoma crimes of eluding a police officer. Chappell does not show 

us why we should depart from the holding in Baker or ignore the plain language of 

K.S.A. 2020 Supp. 21-6811(e)(3)(B)(i)(d). He also does not explain why our decision 

violates the spirit of the law. As a result, we find no error in the district court's judgment.

Affirmed.