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NOT DESIGNATED FOR PUBLICATION

No. 121,640

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

WILLIAM D. ANDERSON,

Appellant.

MEMORANDUM OPINION

Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed October 30, 2020. 

Convictions affirmed, sentence vacated, and case remanded with directions.

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

Amy L. Aranda, first assistant county attorney, Marc Goodman, county attorney, and Derek 

Schmidt, attorney general, for appellee.

Before BRUNS, P.J., WARNER, J., and BURGESS, S.J.

PER CURIAM:William Anderson appeals his convictions for aggravated 

kidnapping, two counts of aggravated battery, aggravated robbery, burglary, two counts 

of theft, possession of tetrahydrocannabinol, and possession of drug paraphernalia in 

Lyon County District Court. He contends that improper closing arguments by the State 

constituted prosecutorial error that deprived him of a fair trial. He also argues that the 

district court incorrectly calculated his criminal history score when it sentenced him. 

Anderson's claim that he was deprived a fair trial based on prosecutorial error does not 

warrant relief. However, Anderson is correct that the district court incorrectly calculated 

his criminal history score because the presentence investigation (PSI) report did not 
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indicate whether his person felony conviction for criminal threat was for intentional or 

reckless criminal threat. Our Supreme Court has declared the reckless disregard portion 

of the statute unconstitutional. We affirm his convictions, vacate the sentence, and 

remand for resentencing so that the district court can properly calculate Anderson's

criminal history score. 

BACKGROUND

The facts in this case are extensive. We, therefore, summarize, rather than detail,

the pertinent facts that are known to the parties from the testimony at trial. We will make 

reference in this opinion to additional facts as necessary.

In September 2018, Anderson confronted the victim, Terrin Felmlee, accusing him 

of sexually assaulting Anderson's girlfriend. With the intent of talking through the 

situation, Felmlee went to Anderson's location. Anderson restrained Felmlee through 

threats and physical assault. Over the next approximately 36 hours, Anderson subjected 

Felmlee to numerous and varied behaviors intended to harm, intimidate, embarrass, and 

humiliate the victim. Felmlee was struck in the head and his property was taken from him 

in various ways. All this was done in front of others who eventually testified at trial.

At the end of trial, the jury found Anderson guilty of aggravated kidnapping, two 

counts of aggravated battery, robbery, burglary, two counts of theft, possession of 

tetrahydrocannabinol, and possession of drug paraphernalia. The original sentencing 

hearing occurred on July 18, 2019, where the district court set Anderson's criminal 

history score at C. Anderson's criminal history score was based on a PSI report that 

included a conviction for criminal threat, but the PSI report did not reveal whether that 

conviction was for intentional or reckless criminal threat. The district court ultimately 

sentenced Anderson to 388 months' imprisonment. 
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Anderson timely appeals. 

ANALYSIS

I. Prosecutorial error did not deprive Anderson of a fair trial.

Anderson argues that the State committed prosecutorial error during its closing 

argument by stating to the jury that the victim was "shot with his own gun," which 

misstated the evidence. Anderson concedes that he never objected to the State's comment. 

Nonetheless, Kansas appellate courts have not required a contemporaneous objection to 

preserve this issue for appellate review when prosecutorial error is alleged during closing 

arguments. State v. McBride, 307 Kan. 60, 65, 405 P.3d 1196 (2017); State v. Tahah, 302 

Kan. 783, 787, 358 P.3d 819 (2015). However, while a lack of objection does not impede 

a court's ability to review the issue, "'the presence or absence of an objection may figure 

into [a court's] analysis of the alleged misconduct.'" State v. Sean, 306 Kan. 963, 974, 399 

P.3d 168 (2017) (quoting State v. King, 288 Kan. 333, 349, 204 P.3d 585 [2009]). 

When an appellant alleges prosecutorial error, appellate courts use a two-step 

process to evaluate the alleged error, which is described as error and prejudice. The court 

first examines the alleged error and decides whether the prosecutor exceeded the wide 

latitude afforded prosecutors to conduct the State's case. State v. Sherman, 305 Kan. 88, 

109, 378 P.3d 1060 (2016). "In determining whether a particular statement falls outside 

of the wide latitude given to prosecutors, the court considers the context in which the 

statement was made, rather than analyzing the statement in isolation." State v. Ross, 310 

Kan. 216, 221, 445 P.3d 726 (2019). If the court finds that the prosecutor committed 

error, it must next decide whether the error prejudiced a defendant's right to a fair trial. 

The court applies a constitutional harmlessness inquiry when evaluating prejudice, i.e., 

whether the State can prove beyond a reasonable doubt that the error did not contribute to 

the jury's verdict. Sherman, 305 Kan. at 109. 
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The victim was shot with his own gun 

At the beginning of the State's closing argument, the prosecutor stated: 

"Shortly after 5:30 p.m., on September 14, 2018, soon began nearly 30 hours of 

physical injury and terror for Terrin Felmlee. You heard evidence that he was held 

against his will, forced to give up his cell phone, his car, his money, and literally treated 

like a dog. Forced into the dog cage, wearing a dog collar and leash that you can see here 

in the courtroom today. 

"He was beaten, shot with his own gun, transported in the trunk of his own car 

with a pillowcase on his head, and disfigured permanently with a tattoo. He was forced to 

endure intense fear knowing at any time that one wrong move and he might die." 

(Emphasis added.) 

In State v. Pruitt, 310 Kan. 952, 964, 453 P.3d 313 (2019), our Supreme Court 

stated: 

"During closing argument, 'a prosecutor may comment on admitted evidence as 

long as the remarks accurately reflect the evidence, accurately state the law, and are not 

intended to inflame the jury's passions or prejudices or divert the jury from its duty to

decide the case based on the evidence and controlling law.' [Citation omitted.]" 

The State argues that the prosecutor's comment about Felmlee being shot with his 

own gun was not error because it was a reasonable inference that could be drawn from 

the evidence. The State is correct that prosecutors can craft arguments that include 

reasonable inferences drawn from admitted evidence. See State v. Haygood, 308 Kan. 

1387, 1398, 430 P.3d 11 (2018). The State asserts that the comment was a reasonable 

inference based on the evidence that someone discharged an airsoft gun into Felmlee's 

leg. 
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To support this, the State points to Felmlee's testimony that he owned airsoft guns

and the fact that police officers recovered a magazine to an airsoft gun when they 

searched Steen's residence. The State also points to Villa's testimony that Anderson told 

him, "[w]in, lose, or draw, I shoot," when they almost fought at Clark's residence and the 

sharp pain that Felmlee felt when something hit his leg. 

Other testimony challenges the State's claim. Though Felmlee admitted he owned 

airsoft guns and that it was possible an airsoft gun could have been in his vehicle, he 

could not recall whether he had one with him when he was living in Emporia in 

September 2018. Furthermore, Felmlee testified that before, during, and after his left leg 

was injured, he could not see anything because the pillowcase was over his head. He was 

only able to say that it felt "like a pipe," and the "best way to describe it would be 

probably like a paint ball gun or an airsoft gun." Additionally, police never recovered an

airsoft gun and the recovered airsoft magazine from Steen's residence was not loaded

with any plastic ammunition. 

The lack of specification is important. While there was some discussion about an 

airsoft gun, Felmlee's .22 caliber rifle was discussed extensively throughout the case. It 

was the .22 caliber rifle that Murillo discharged, causing glass shards to hit Felmlee's leg. 

Based on the State's argument, the evidence could be subject to more than one inference. 

Because of a lack of specification, the statement was not a completely accurate 

description of the evidence in the case. See Pruitt, 310 Kan. at 964. 

Regardless of the lack of specificity, the court must consider the context

surrounding the statement rather than analyzing it in isolation. Ross, 310 Kan. at 221. 

After making the statement, the State went through the crimes Anderson was charged 

with and the evidence that supported each charge. The State discussed how the evidence 

that Anderson hit Felmlee on the head with the handles of the knives supported Count 2, 

the first count of aggravated battery. The State then discussed how Schlesener tattooing 
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Felmlee at Anderson's direction supported Count 3, the second count of aggravated 

battery under an aiding and abetting theory. Aside from the brief remark at the beginning 

of the opening statement, the State at no point mentioned Felmlee being shot with his 

own gun as a basis to convict Anderson of either aggravated battery charge. Furthermore, 

the State went on to discuss each and every charge and the evidence that supported those 

charges without any further reference to the complained of statement.

In the rebuttal portion of her closing argument, the prosecutor also stated that her 

remarks were intended to help the jury "but they are not evidence. So, if any statements 

are made that are not supported by the evidence that you see in front of you or that you've 

heard over the course of the week, those statements should be disregarded." The 

prosecutor also reiterated the State's position that the knives were a deadly weapon that 

supported finding Anderson guilty of aggravated battery. 

When viewed in context, the prosecutor's statement at the beginning of her closing 

argument was inaccurate, but it was also brief and isolated. The full context makes clear 

that the statement was not meant to inflame the passions or prejudices of the jurors or 

distract them from their duty to decide the case based on the evidence or the controlling 

law. See Pruitt, 310 Kan. at 964. We find that the prosecutor did not err when she made 

the statement. 

Prejudice 

In addition to showing that the prosecutor made an improper statement, Anderson 

must also show whether the error prejudiced Anderson's right to a fair trial. When 

evaluating prejudice, appellate courts apply a constitutional harmlessness inquiry, i.e., 

whether the State can prove beyond a reasonable doubt that the error did not contribute to 

the jury's verdict. Put differently, the State must show that the errors present no 

reasonable possibility that the error contributed to the verdict. Sherman, 305 Kan. at 109. 
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When assessing prejudice, "'[t]he focus of the inquiry is on the impact of the error 

on the verdict. While the strength of the evidence against the defendant may secondarily 

impact this analysis one way or the other, it must not become the primary focus of the 

inquiry.'" State v. Ballou, 310 Kan. 591, 598, 448 P.3d 479 (2019) (quoting Sherman, 305 

Kan. at 111).

Anderson argues that the State cannot meet its burden because he asserted an 

elements defense at trial, arguing that Felmlee voluntarily chose to be subjected to some 

of the behaviors directed at him and that he did not force or instruct Felmlee to do the 

alleged acts. Anderson also argues that the trial largely centered on credibility, and the 

prosecutor's comments inflamed the jury. 

However, when viewed in context, the brief, isolated comment was not designed 

to influence the jury's deliberations. It was part of a brief comment made before the State 

went through each charged crime and described the supporting evidence in detail. The 

State did not make any further reference to the statement or any further implication that 

Felmlee was shot with his own gun. 

There was significant evidence introduced against Anderson at trial. The State 

introduced several exhibits that showed what police officers recovered when they 

searched Steen's residence, including Felmlee's financial cards, the dog kennel containing 

urine, a pillowcase Felmlee described, Felmlee's car key, Felmlee's .22 caliber rifle, the 

shirt that Felmlee was originally wearing, a prescription bottle with Felmlee's name, and 

Felmlee's hunting license, among other things. A DNA test of the pillowcase revealed a 

DNA match with Felmlee. 

The police also recovered a kitchen knife, dog collars, marijuana, drug 

paraphernalia, and an Amazon package addressed to Felmlee. Furthermore, the State 
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introduced the video from Emporia State Bank that showed people inside Felmlee's 

vehicle making a transaction from the teller's window. An officer also testified that the

police recovered Felmlee's vehicle on September 20 about a block-and-a-half away from 

Steen's residence. Moreover, on top of Felmlee's testimony, four other witnesses all 

testified against Anderson. The evidence against Anderson was overwhelming. The State 

met its burden to prove beyond a reasonable doubt that any error did not affect the jury's 

verdict in the case. See Sherman, 305 Kan. at 109. We affirm Anderson's convictions. 

II. The district court erred in calculating Anderson's criminal history score.

Anderson contends that the district court incorrectly calculated his criminal history 

score. Anderson concedes that he did not object to the inclusion of his prior criminal 

threat conviction in his criminal history score during sentencing. But he points to State v. 

Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015), as authority to support his 

contention that he can raise such a challenge for the first time on appeal. 

In Dickey, our Supreme Court overruled a line of cases that stood "for the 

proposition that a legal challenge under K.S.A. 22-3504(1) is waived if the defendant 

stipulated or failed to object at sentencing to the classification of prior convictions or the 

resulting criminal history score." 301 Kan. at 1032. Our Supreme Court then held that 

legal challenges to the classification of a prior adjudication can be raised for the first time 

on appeal because the language of K.S.A. 22-3504(1) "specifically authorizes a court to 

'correct an illegal sentence at any time.'" 301 Kan. at 1034. Anderson is correct that he 

can raise such a challenge for the first time on appeal, despite failing to object during 

sentencing. 

Appellate courts exercise unlimited review of a district court's classification of 

prior offenses for criminal history purposes because it involves interpretation of the 

revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq., 
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which is a question of law. State v. Ewing, 310 Kan. 348, 351, 446 P.3d 463 (2019). The 

State bears the burden to establish a criminal defendant's criminal history score by a 

preponderance of the evidence. K.S.A. 2019 Supp. 21-6814(a); State v. Obregon, 309 

Kan. 1267, Syl. ¶ 4, 444 P.3d 331 (2019). 

Here, the district court scored Anderson's criminal history at C. Under K.S.A. 

2019 Supp. 21-6809, a defendant's criminal history must include "one adult conviction or 

juvenile adjudication for a person felony, and one or more adult conviction or juvenile 

adjudication for a nonperson felony" for the defendant's criminal history to be C. To 

arrive at Anderson's score, the district court considered the PSI report, which listed a 

2017 conviction for criminal threat, a person felony. See K.S.A. 2019 Supp. 21-

5415(a)(1). But the PSI report did not reveal whether his conviction was for reckless or 

intentional criminal threat. 

Relying on Virginia v. Black, 538 U.S. 343, 359-60, 123 S. Ct. 1536, 155 L. Ed. 

2d 535 (2003), our Supreme Court held in State v. Boettger, 310 Kan. 800, 822-23, 450 

P.3d 805 (2019), cert. denied 140 S. Ct. 1956 (2020), that a conviction for criminal threat 

based solely on recklessness was unconstitutional. The recklessness provision was 

"unconstitutionally overbroad because it [could] apply to statements made without the 

intent to cause fear of violence," and the language of the statute "provide[d] no basis for 

distinguishing circumstances where the speech is constitutionally protected from those 

where the speech does not warrant protection under the First Amendment." 310 Kan. at 

822-23. 

Under the revised KSGA, "[p]rior convictions of a crime defined by a statute that 

has since been determined unconstitutional by an appellate court shall not be used for 

criminal history scoring purposes." K.S.A. 2019 Supp. 21-6810(d)(10). "Generally, when 

an appellate court decision changes the law, that change acts prospectively and applies 

only to all cases, state or federal, that are pending on direct review or not yet final on the 
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date of the appellate court decision." State v. Mitchell, 297 Kan. 118, Syl. ¶ 3, 298 P.3d 

349 (2013); see State v. Thomas, 307 Kan. 733, 741, 415 P.3d 430 (2018).

The State's only argument against the Boettger decision applying to Anderson's 

case is that the decision is not yet final because our Supreme Court stayed the issuance of 

its mandate to allow the State to petition for writ of certiorari pursuant to K.S.A. 2019 

Supp. 22-3605(b)(1). However, on June 22, 2020, the United States Supreme Court

denied the State's petition for writ of certiorari. Following the denial of the State's 

petition, our Supreme Court issued its mandate on June 23, 2020. The Boettger decision 

applies to Anderson's case. See Thomas, 307 Kan. at 741; Mitchell, 297 Kan. at 124-125. 

The State did not satisfy its burden to establish Anderson's criminal history by a 

preponderance of the evidence. The district court erred because the PSI report did not 

reveal whether Anderson's criminal threat conviction was for reckless or intentional 

criminal threat. For these reasons, we vacate the sentence entered and remand the issue so 

the district court can determine Anderson's appropriate criminal history score. See 

Obregon, 309 Kan. at 1275-76.

Convictions affirmed, sentence vacated, and case remanded with directions.