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No. 115,058

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

LEE HORST RALF FAHNERT,

Appellant.

SYLLABUS BY THE COURT

1.

In classifying a prior out-of-state conviction as person or nonperson for purposes 

of scoring criminal history, the court shall refer to comparable offenses under the Kansas 

Criminal Code in effect on the date the current crime of conviction was committed. If the 

state of Kansas does not have a comparable offense in effect on the date the current crime 

of conviction was committed, the out-of-state conviction shall be classified as a 

nonperson crime. If Kansas does have a comparable offense at the time the defendant 

committed the current crime of conviction, the court must refer to that comparable 

offense in Kansas in deciding whether to classify the prior out-of-state conviction as a 

person or nonperson offense.

2.

To determine whether a Kansas offense is comparable to an out-of-state 

conviction, the offenses need only be comparable, not identical. A comparable crime is 

one that is similar in nature and covers a similar type of criminal conduct.
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3.

If the current comparable offense under the Kansas Criminal Code criminalizes 

some conduct as a person offense and other conduct as a nonperson person offense, both 

the Kansas and United Stated Constitutions require further analysis to determine the 

propriety of classifying a prior out-of-state conviction as a person offense for purposes of 

scoring criminal history under K.S.A. 2016 Supp. 21-6811(e). In that circumstance, 

which arises under the Kansas burglary statute, K.S.A. 2016 Supp. 21-5807, at issue here, 

the constitutional protections described in Apprendi v. New Jersey, 530 U.S. 466, 120 S. 

Ct. 2348, 147 L. Ed. 2d 435 (2000), are implicated when the court goes beyond the fact 

of a prior out-of-state conviction and its statutory elements to make findings of fact that 

are then used to increase the penalty for the current crime of conviction beyond the 

prescribed statutory maximum.

4.

In referring to the current comparable offense under the Kansas Criminal Code, 

there are two ways to analyze prior convictions for scoring criminal history in calculating 

a current sentence without violating the constitutional protections in Apprendi. When the 

out-of-state statute of conviction is indivisible, meaning it sets out only a single set of 

elements, courts take a "categorical approach" and look only to the elements of the statute 

upon which the prior offense was based in referring to the comparable Kansas statute. 

When the out-of-state statute of conviction is divisible, meaning it sets out alternative sets 

of elements that represent more than one crime, courts take a "modified categorical 

approach" to determine which alternative set of statutory elements the court should use 

for its comparison under the categorical approach.

5.

The modified categorical approach is inapplicable to a divisible statute when none 

of the alternative elements match any elements of the current comparable crime. 
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6.

The vehicles and structures listed in Mo. Rev. Stat. § 569.010(2) (2000) are 

alternative factual ways to satisfy the location element of an inhabitable structure, which 

is an element required to prove the crime of second-degree burglary in an inhabitable 

structure under Mo. Rev. Stat. § 569.170 (2000), the statute in Missouri that is similar in 

nature and covers a similar type of criminal conduct to the Kansas burglary statute.

7.

Under the facts of this case, the district court was constitutionally prohibited from 

classifying the defendant's prior burglary conviction as a person felony under K.S.A. 

2016 Supp. 21-6811(d) because doing so necessarily resulted from the district court 

making or adopting a factual finding (i.e., the prior burglary involved a dwelling) that 

went beyond simply identifying the statutory elements that constituted the prior burglary 

conviction.

8.

K.S.A. 2016 Supp. 21-6811(e) governs the classification of prior convictions as 

person or nonperson offense for purposes of scoring criminal history when the prior 

offense qualifies as both an out-of-state conviction and as a prior burglary conviction. 

Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed April 28, 2017. 

Sentence vacated and case remanded with directions.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant. 

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and 

Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., STANDRIDGE and SCHROEDER, JJ.
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STANDRIDGE, J.: Lee Horst Ralf Fahnert appeals the district court's classification 

of his 2007 Missouri burglary conviction as a person felony for purposes of scoring his 

criminal history. We find the district court's classification violated Fahnert's 

constitutional rights under Descamps v. United States, 570 U.S. __, 133 S. Ct. 2276, 186 

L. Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.

Ed. 2d 435 (2000), as applied by our state in State v. Dickey, 301 Kan. 1018, 350 P.3d 

1054 (2015). Accordingly, we vacate the sentence imposed and remand to the district 

court for resentencing. 

FACTS

On June 26, 2015, Fahnert pled guilty to attempted theft with two or more prior 

convictions, a severity level 10 nonperson felony. A presentence investigation (PSI) 

report prepared before sentencing indicated that Fahnert's criminal history score was B 

based in part on a prior 2007 burglary conviction in Cass County, Missouri, which was 

classified as a person felony. Fahnert objected to his criminal history score and requested 

a continuance so he could file a written objection. The district court granted Fahnert's 

request.

On August 24, 2015, Fahnert filed a brief objecting to his criminal history score. 

Specifically, Fahnert claimed his 2007 Missouri burglary conviction was improperly 

classified as a person felony because he pled guilty in that case to burglary of a structure 

that was not a dwelling. In a response brief, the State argued the Missouri burglary was 

properly classified. In support of its argument, the State attached documents from the 

underlying Missouri conviction to establish that Fahnert's 2007 Missouri conviction was 

burglary of a residence. After reviewing the documents submitted by the State and 

hearing arguments from both counsel at Fahnert's October 16, 2015, sentencing hearing, 

the court overruled Fahnert's objection to his criminal history score and sentenced him to 

a term of 10 months in prison.
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ANALYSIS

Fahnert's only contention on appeal is that the district court erred in classifying his 

2007 Missouri burglary conviction as a person offense. Whether a district court properly 

classified a defendant's prior burglary conviction as a person crime for purposes of 

scoring criminal history is a question of law over which an appellate court has unlimited 

review. See State v. Luarks, 302 Kan. 972, 976, 360 P.3d 418 (2015); State v. Taylor, 299 

Kan. 5, 8, 319 P.3d 1256 (2014). We begin our analysis with the revised Kansas 

Sentencing Guidelines Act (KSGA), K.S.A. 2016 Supp. 21-6801 et seq., which sets forth 

the procedure for classifying prior convictions to score criminal history. 

K.S.A. 2016 Supp. 21-6811(e) governs the classification of prior out-of-state 

convictions like the one here. Under that subsection, the court first must determine 

whether the prior conviction is a misdemeanor or a felony based on the law of the state 

where the defendant was convicted. K.S.A. 2016 Supp. 21-6811(e)(2). In this case, the 

sentencing court properly classified Fahnert's prior conviction as a felony for purposes of 

scoring criminal history because Missouri treated the prior conviction as a felony. See 

Mo. Rev. Stat. § 569.170 (2000). Next, the court must determine whether to classify the 

prior out-of-state conviction as a person or nonperson offense. The court makes this 

determination by looking to see whether the Kansas Criminal Code had a comparable 

offense at the time the defendant committed the current crime of conviction. K.S.A. 2016 

Supp. 21-6811(e)(3); State v. Keel, 302 Kan. 560, 590, 357 P.3d 251 (2015), cert. denied

136 S. Ct. 865 (2016). If there is no comparable offense in Kansas at the time the 

defendant committed the current crime of conviction, the out-of-state conviction is 

classified as a nonperson offense. K.S.A. 2016 Supp. 21-6811(e)(3). If Kansas does have 

a comparable offense at the time the defendant committed the current crime of 

conviction, the court must refer to that comparable offense in Kansas in deciding whether 

to classify the prior out-of-state conviction as a person or nonperson offense. K.S.A. 2016 

Supp. 21-6811(e)(3). 
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To determine whether a Kansas statute is comparable to an out-of-state conviction, 

"'the offenses need only be comparable, not identical.'" State v. Williams, 299 Kan. 870, 

873, 326 P.3d 1070 (2014) (quoting State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 

[2003], overruled on other grounds by State v. Dickey, 301 Kan. 1018, 1032, 350 P.3d 

1054 [2015]). Instead of identical, a comparable crime is one that is "'similar in nature 

and cover[s] a similar type of criminal conduct.'" State v. Riolo, 50 Kan. App. 2d 351, 

353, 330 P.3d 1120 (2014) (quoting State v. Barajas, 43 Kan. App. 2d 639, 643, 230 P.3d 

784 [2010]), rev. denied 302 Kan. 1019 (2015). Thus, K.S.A. 2016 Supp. 21-6811(e) 

allows the sentencing court to classify a prior out-of-state conviction as a person felony in 

scoring criminal history if the out-of-state offense is similar in nature and covers a type of 

criminal conduct similar to a Kansas offense that is classified as a person felony. If the 

current comparable offense under the Kansas Criminal Code criminalizes some conduct 

as a person offense and other conduct as a nonperson person offense, however, both the 

Kansas and United Stated Constitutions require further analysis to determine the 

propriety of classifying a prior out-of-state conviction as a person offense for purposes of 

scoring criminal history under K.S.A. 2016 Supp. 21-6811(e). In that circumstance, 

which arises under the Kansas burglary statute, K.S.A. 2016 Supp. 21-5807, at issue here, 

the constitutional protections described in Apprendi v. New Jersey, 530 U.S. 466, 120 S. 

Ct. 2348, 147 L. Ed. 2d 435 (2000), are implicated when the court goes beyond the fact 

of a prior out-of-state conviction and its statutory elements to make findings of fact that 

are then used to increase the penalty for the current crime of conviction beyond the 

prescribed statutory maximum.

In Dickey, 301 Kan. 1018, Syl. ¶ 7, our Supreme Court explained that "[t]he 

constitutional protections described in [Apprendi] are implicated when a district court, for 

purposes of enhancing a defendant's sentence for a current conviction, makes findings of 

fact at sentencing that go beyond merely finding the existence of a prior conviction or the 

statutory elements that made up the prior conviction." In Apprendi, 530 U.S. at 490, the 

United States Supreme Court held that "[o]ther than the fact of a prior conviction, any 
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fact that increases the penalty for a crime beyond the prescribed statutory maximum must 

be submitted to a jury, and proved beyond a reasonable doubt."

In Descamps, 133 S. Ct. at 2281, the United States Supreme Court identified the 

two ways in which a sentencing court can analyze prior convictions for purposes of 

current sentencing without violating the constitutional protections articulated in 

Apprendi: the categorical approach and the modified categorical approach. Regardless of 

which approach is used, the sentencing court ultimately is required to compare the 

elements of the prior conviction with elements of the generic offense without looking into 

the facts underlying the prior conviction. Descamps, 133 S. Ct. at 2281. Both of these 

approaches were adopted by the Kansas Supreme Court in Dickey, 301 Kan. at 1036-40. 

Under the categorical approach, the court looks only at the statutory elements of 

the two offenses being compared. A modified categorical approach is used, however, 

when the prior conviction statute is divisible—in other words, when the statute under 

which the defendant previously was convicted provides alternative ways of committing 

the crime, each with its own set of elements. Under the modified categorical approach, 

the court can look at a limited set of documents to determine which set of statutory 

elements it should use for purposes of comparing that prior conviction with the elements 

of the current comparable offense. So, the modified categorical approach lets the court 

look at a few underlying facts from the prior conviction, but not for sentencing 

purposes—only to determine which alternative set of elements in the prior conviction 

statute it should compare to the current comparable offense. Descamps, 133 S. Ct. at 

2281.

Most recently, in Mathis v. United States, 579 U.S. __, 136 S. Ct. 2243, 2249, 195 

L. Ed. 2d 604 (2016), the United States Supreme Court clarified that the modified 

categorical approach applies only to statutes that list "multiple elements disjunctively"

and not to those that merely list "various factual means of committing a single element." 
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To illustrate the difference, the Court provided an example. If "a statute requires the use 

of a 'deadly weapon' as an element of a crime and further provides that the use of a 'knife, 

gun, bat, or similar weapon' would all qualify," application of the modified categorical 

approach would be inappropriate because that statute "merely specifies diverse means of 

satisfying a single element of a single crime." 136 S. Ct. at 2249. Thus, "[t]he first task 

for a sentencing court faced with an alternatively phrased statute is thus to determine 

whether its listed items are elements or means." 136 S. Ct. at 2256.

Having set forth the statutory procedure for classifying prior out-of-state 

convictions for purposes of scoring criminal history in circumstances where that 

particular classification ultimately enhances a defendant's sentence for a current 

conviction, we are ready to review the district court's decision to classify Fahnert's 2007

Missouri burglary conviction as a person offense. At the time Fahnert committed his 

current crime, the Kansas burglary statute provided, in relevant part: 

"(a) Burglary is, without authority, entering into or remaining within any:

(1) Dwelling, with intent to commit a felony, theft or sexually motivated crime 

therein;

(2) building, manufactured home, mobile home, tent or other structure which is 

not a dwelling, with intent to commit a felony, theft or sexually motivated crime therein; 

or

(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of 

persons or property, with intent to commit a felony, theft or sexually motivated crime 

therein. 

. . . .

"(c)(1) Burglary as defined in 

(A) Subsection (a)(1) is a severity level 7, person felony . . . ." K.S.A. 2014 Supp. 

21-5807.

Based on the language in the Kansas burglary statute, Fahnert's 2007 Missouri 

burglary conviction must be classified as a prior person felony if it was burglary of a 
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dwelling but as a prior nonperson felony if it was burglary of a nondwelling. K.S.A. 2014 

Supp. 21-5807. In Kansas, a dwelling is defined as "a building or portion thereof, a tent, a 

vehicle or other enclosed space which is used or intended for use as a human habitation, 

home or residence." K.S.A. 2016 Supp. 21-5111(k). Thus, if the Missouri burglary statute 

includes a requirement that the burglary was of an enclosed space used or intended for 

use as a human habitation, home, or residence, then the prior conviction should be 

classified as a person felony in Kansas.

The Missouri burglary statute that forms the basis for Fahnert's prior conviction in 

2007 provided, in relevant part:

"1. A person commits the crime of burglary in the second degree when he 

knowingly enters unlawfully or knowingly remains unlawfully in a building or 

inhabitable structure for the purpose of committing a crime therein.

"2. Burglary in the second degree is a class C felony." Mo. Rev. Stat. § 569.170 

(2000).

Mo. Rev. Stat. § 569.010 (2000) sets forth the definition of inhabitable structure as 

that term is used in the Missouri second-degree burglary statute above: 

"(2) 'Inhabitable structure' includes a ship, trailer, sleeping car, airplane, or other 

vehicle or structure: 

(a) Where any person lives or carries on business or other calling; or

(b) Where people assemble for purposes of business, government, education, 

religion, entertainment or public transportation; or

(c) Which is used for overnight accommodation of persons. Any such vehicle or 

structure is 'inhabitable' regardless of whether a person is actually present." (Emphasis 

added.)

Fahnert argues the sentencing court erred in classifying his prior conviction as a 

person felony. In support of his argument, Fahnert first points out that Mo. Rev. Stat. 
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§ 569.170 does not include a dwelling element. Second, Fahnert points out that the list of 

vehicles and structures that qualify as an inhabitable structure under Mo. Rev. Stat. § 

569.010 is significantly broader than the vehicles and structures that qualify as a dwelling 

under the comparable Kansas statute. A Missouri burglary conviction includes burglary 

of any vehicle or structure where a person carries on a business or other calling or where 

people assemble for business, government, education, religion, entertainment, or public 

transportation. But a Kansas (person) burglary conviction must involve burglary of a 

dwelling, which is limited to vehicles and structures used solely for purposes of human 

habitation, home, or residence. Given the 2000 Missouri burglary statute does not include 

a requirement that the burglary be of an enclosed space used or intended for use as a 

human habitation, home, or residence, Fahnert claims the sentencing court necessarily 

had to have considered facts beyond the elements of the comparable statutes to find that 

his prior Missouri burglary had been committed in a dwelling. Because his sentence was 

enhanced as a result of this finding, Fahnert argues the sentencing court engaged in 

improper judicial factfinding that violated his constitutional rights under Apprendi and 

Descamps, as applied by Dickey.

Utilizing the legal principles dictated by Dickey, we begin by examining the 2000

Missouri burglary statute to determine whether the categorical approach or the modified 

categorical approach applies to our analysis. Because the modified categorical approach 

is applicable only when the defendant was convicted of violating a divisible statute and 

then, only to the extent it is necessary to determine which alternative statutory offense 

formed the basis for the conviction, we begin with that determination. A criminal offense 

is "divisible" only when a statute lists multiple, alternative elements that effectively 

create several different crimes. But as the Supreme Court specifically pointed out in 

Dickey, 301 Kan. at 1038, the modified categorical approach will not be applicable to 

every statute that is divisible 
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"'because, in some cases, none of the alternative elements will match any elements of the 

corresponding generic crime. Post-Descamps, a case involving a prior statute of 

conviction for burglary containing alternative elements, none of which match any 

element of a generic statute, is virtually indistinguishable from a case involving a prior 

statute of conviction for burglary containing a single and indivisible set of elements; thus, 

the modified approach has no role to play.'"

Our review of the Missouri burglary statute reveals it is phrased in the alternative 

with respect to the type of structure burglarized: building or inhabitable structure. See 

Mo. Rev. Stat. § 569.170 (2000). But in this case, it is unnecessary to determine whether 

the statute is divisible, i.e., whether "building" and "inhabitable structure" are alternative 

elements (making the statute divisible) or alternative factual means (making the statute 

indivisible). As was the case in Dickey, the modified categorical approach would not be 

proper here even if we did decide the alternative phrasing of "building" and "inhabitable 

structure" rendered Mo. Rev. Stat. § 569.170 divisible because neither the elements of 

burglary of a building or burglary of an inhabitable structure match the dwelling location 

element of the Kansas statute. See Dickey, 301 Kan. at 1038 (modified categorical 

approach inapplicable to a divisible statute when none of the alternative elements match 

any elements of the current comparable crime). 

Although we have declined to decide whether "building" and "inhabitable 

structure" are alternative elements (making the statute divisible) or alternative factual 

means (making the statute indivisible), we note there are federal courts in Missouri after 

Mathis that have construed the alternate locations in Mo. Rev. Stat. § 569.170 as 

alternative means, which in turn have caused the courts to conclude the statute is 

indivisible. See Givens v. United States, __ F. Supp. 3d __, No. 4:16-CV-1143 CAS, 

2016 WL 7242162, at *5-7 (E.D. Mo. 2016) (concluding Missouri second-degree 

burglary statute is indivisible because it includes alternative means, not elements; thus 

modified categorical approach not permitted); Taylor v. United States, __ F. Supp. 3d __, 

No. 1:16-CV-149 CAS, 2016 WL 6995872, at *6 (E.D. Mo. 2016) (same); Johnson v. 
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United States, __ F. Supp. 3d __, No. 4:16-CV-00649-NKL, 2016 WL 6542860, at *3 

(W.D. Mo. 2016) (same); United States v. Bess, No. 4:15-CR-00021-ERW, 2016 WL 

6476539, at *4 (E.D. Mo. 2016); Henderson v. United States, 207 F. Supp. 3d 1047, 1054

(W.D. Mo. 2016) (same); Small v. United States, 204 F. Supp. 3d 1069, 1074 (W.D. Mo. 

2016) (same); see also United States v. Rockwell, 207 F. Supp. 3d 915, 919 (W.D. Ark. 

2016) (same). Cf. United States v. Sykes, 844 F.3d 712, 715-16 (8th Cir. 2016) (finding 

burglary of "building" describes element of second-degree burglary rather than a means; 

thus, court did not run afoul of Mathis in looking at documents to determine whether 

prior conviction was burglary of building, which, if so, would have conformed to 

elements of generic burglary). 

But, again, under the legal principles expressly stated by our Supreme Court in 

Dickey, there is no need for us to decide whether Mo. Rev. Stat. § 569.170 is divisible 

because even if building and inhabitable structure are alternative elements, neither match 

the dwelling element required in the comparable Kansas statute. Dickey, 301 Kan. at 

1038-39. For this reason, we find the district court erred by using the modified 

categorical approach to go beyond simply comparing the statutory elements to look at 

documents in the underlying case and make a factual finding that Fahnert's Missouri 

burglary conviction had been committed in a dwelling. And because Fahnert's sentence 

was enhanced as a result of that finding, we conclude the sentencing court engaged in 

improper judicial factfinding that violated Fahnert's constitutional right to trial by jury 

under Apprendi. Under Dickey, Fahnert's prior Missouri burglary conviction should have 

been classified as a nonperson felony because the burglary statute in Missouri did not 

include a dwelling element, and the definition of inhabitable structure as that term was 

used in the statute included vehicles and structures used or intended to be used for 

purposes other than a human habitation, home, or residence. 

Our analysis of the Missouri statute on the issue presented here not only complies 

with Kansas Supreme Court and United States Supreme Court precedent but also is 
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consistent with that used by other panels of our court in several unpublished opinions. 

See State v. Wetrich, No. 112,361, 2016 WL 197808, at *5 (Kan. App. 2016) 

(unpublished opinion) ("[E]ven though Mo. Rev. Stat. § 569.170 [1988] is a divisible 

statute, because none of the alternative elements in Mo. Rev. Stat. § 569.170 [1988] 

match the essential 'dwelling' element in K.S.A. 21-3715[a], the district court was 

prohibited from looking outside the elements of the comparable offenses without 

violating Apprendi and Descamps."), rev. granted 305 Kan. __ (December 13, 2016); 

State v. Beck, No. 113,496, 2016 WL 3570543, at *4 (Kan. App. 2016) (unpublished 

opinion) (prior Arkansas burglary conviction properly classified as nonperson felony 

because Arkansas burglary statute did not include dwelling element where definition of 

"occupiable structure" included commercial buildings not intended for use as a human 

habitation, as long as they could be "occupied"), rev. denied 305 Kan. __ (February 7, 

2017); State v. Farley, No. 109,655, 2014 WL 5345895, at *7 (Kan. App. 2014) 

(unpublished opinion) (district court erred in treating Farley's 1998 Missouri burglary 

conviction as a person felony in scoring his criminal history because "[t]he Missouri 

statute under which Farley was convicted covered conduct that would not qualify as a 

person felony in Kansas"), rev. denied 302 Kan. 1014 (2015).

Notwithstanding the state and federal decisions supporting our analysis, we note 

that our decision today conflicts with a recent unpublished decision from another panel of 

this court in State v. Sodders, No. 115,366, 2017 WL 462046 (Kan. App. 2017)

(unpublished opinion), petition for rev. filed March 3, 2017. But we are not bound by the 

decision of a previous panel of our court. State v. Urban, 291 Kan. 214, 223, 239 P.3d 

837 (2010). "While we must carefully consider each precedent cited to us, we also must 

uphold our duty to correctly determine the law in each case that comes before us. In 

doing so, we sometimes find that we must respectfully disagree with the opinion of 

another panel." Uhlmann v. Richardson, 48 Kan. App. 2d 1, 13, 287 P.3d 287 (2012).
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Like here, the issue on appeal in Sodders was whether the sentencing court 

misclassified a prior Missouri burglary conviction as a person offense. Contrary to the 

conclusion we reach today, the Sodders court ultimately found it proper to apply the 

modified categorical approach. In so concluding, the court disagreed with the ruling in 

Wetrich that none of the alternative elements (building or inhabitable structure) in the 

Missouri statute match the dwelling element in K.S.A. 21-3715(a), the Kansas burglary 

statute. Citing Mo. Rev. Stat. § 569.010, the definitional statute that enumerates the broad 

list of vehicles and structures qualifying as inhabitable structures under Mo. Rev. Stat. 

§ 569.170, the Sodders panel singled out two narrow examples that would qualify as a 

dwelling under the Kansas burglary statute: "(a) Where any person lives or carries on 

business or other calling; or (b) Where people assemble for purposes of business, 

government, education, religion, entertainment or public transportation; or (c) Which is 

used for overnight accommodation of persons." (Emphasis added.) Mo. Rev. Stat. 

§ 569.010(2).

Although the Sodders panel never said so expressly, it construed the two narrow 

examples of structures it singled out of the broader list to be separate location elements of 

the crime of burglary (as opposed to alternative factual ways to satisfy the location 

element) that matched the element of dwelling in the Kansas burglary statute. Construing 

the statute this way allowed the court to apply the modified categorical approach and look 

beyond the language in the Missouri statute to review the written petition to enter a plea 

of guilty in the prior underlying case, which stated Sodders "'knowingly entered 

unlawfully into a house owned by Wendy Hale.'" Sodders, 2017 WL 462046, at *5.

Finding the term "house" fell within the definition of dwelling, the court affirmed the 

district court's decision to classify Sodders' 2008 Missouri burglary conviction as a 

person felony. 2017 WL 462046, at *5.

We disagree with the analysis utilized by the court in Sodders. Our disagreement 

centers on the panel's finding that the list of vehicles and structures provided in Mo. Rev. 
15

Stat. § 569.010(2) are separate location elements of the crime of second-degree burglary 

in Missouri under Mo. Rev. Stat. § 569.170. As previously explained, use of the modified 

categorical approach is proper "when the statute forming the basis of the prior conviction 

is a 'divisible statute,' i.e., a statute which includes multiple, alternative versions of the 

crime and at least one of the versions matches the elements of the [Kansas] offense." 

Dickey, 301 Kan. at 1037. If we were to adopt the analysis in Sodders, each and every 

vehicle and structure listed in Mo. Rev. Stat. § 569.010(2) would state an alternative 

element that would create a separate way in which one can commit the crime of seconddegree burglary in Missouri. Instead of distinct and separate elements, we believe the 

vehicles and structures listed in the Mo. Rev. Stat. § 569.010(2) (2000) are alternative 

factual ways to satisfy the locational element of inhabitable structure, which is an element 

that is required to prove the crime of second-degree burglary in Missouri. See Mo. Rev. 

Stat. § 569.170 (2000) (second-degree burglary defined as unlawfully entering or 

remaining in a building or inhabitable structure).

In State v. Brown, 295 Kan. 181, 196, 284 P.3d 977 (2012), the Kansas Supreme 

Court addressed the difference between alternative elements that present distinct ways of 

committing a crime and various factual means by which the element can be proved:

"Regardless of such subsection design, however, a legislature may list additional 

alternatives or options within one alternative means of committing the crime. But these 

options within an alternative do not constitute further alternative means themselves if 

they do not state additional and distinct ways of committing the crime, that is, if they do 

not require proof of at least one additional and distinct material element."

The distinction between alternative elements that present alternative crimes and 

alternative factual ways to satisfy a single element of a crime was recently addressed by 

the United States Supreme Court in Mathis, 136 S. Ct. at 2257. At issue in Mathis was 

Iowa's burglary statute, which lists multiple, alternative means of satisfying one of its 

elements—the place where a burglary can occur. The generic offense of burglary requires 
16

unlawful entry into a "building or other structure." In contrast, the Iowa statute describes 

a broader range of places where a burglary can be committed: "'any building, structure,

[or] land, water, or air vehicle.'" 136 S. Ct. at 2250 (quoting Iowa Code § 702.12 [2013]). 

The Supreme Court concluded the listed locations in Iowa's statute are not "alternative 

elements, going toward the creation of separate crimes" but instead are "alternative ways 

of satisfying a single locational element." 136 S. Ct. at 2250. Given the elements of 

Iowa's burglary statute were broader than the elements of generic burglary, the Court held 

that the defendant's prior burglary convictions in Iowa could not be used to enhance his 

current sentence as provided in the Armed Career Criminal Act (ACCA). 136 S. Ct. at

2257. In so holding, the Court reiterated that generally established principles render "the 

'underlying brute facts or means' of commission" irrelevant and that sentencing courts are 

to engage in "an elements-only inquiry" of the statute of conviction. 136 S. Ct. at 2251-

52. The Court held this to be true even if the sentencing judge knows or can easily 

discover that the actual facts underlying defendant's prior conviction satisfy the elements 

of the generic offense. 136 S. Ct. at 2251.

Notably, each of the Missouri federal courts cited above construing the Missouri 

second-degree burglary statute relied on Mathis to find, like we have here, that the 

vehicles and structures listed in the Mo. Rev. Stat. § 569.010(2) (2000) are alternative 

factual ways to satisfy the element of inhabitable structure in Mo. Rev. Stat. § 569.170

(2000). See Givens, 2016 WL 7242162, at *5-7; Taylor, 2016 WL 6995872, at *6;

Johnson, 2016 WL 6542860, at *3; Bess, 2016 WL 6476539, at *4; Henderson, 207 F. 

Supp. 3d at 1053-54; Small, 204 F. Supp. 3d at 1074; see also Rockwell, 207 F. Supp. 3d

at 919. In light of this finding, each of the courts held Mo. Rev. Stat. § 569.170 to be an 

indivisible statute subject to the categorical approach, which limits the sentencing court 

to comparing statutory elements.

Although the defendant in Sodders relied on Mathis in his written brief on appeal 

in arguing that the sentencing court went beyond simply comparing statutory elements to 
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classify his prior Missouri burglary conviction as a person felony and enhance his current 

sentence, the panel found the defendant's reliance on Mathis to be misplaced. 

Specifically, the panel "consider[ed] Mathis inapplicable because its analysis was 

mandated by the ACCA, not the Sixth Amendment" to the United States Constitution.

Sodders, 2017 WL 462046, at *5. But based on our review of the United States Supreme 

Court opinion, we respectfully disagree with the panel's conclusion that the holding in 

Mathis is grounded solely in the ACCA. In its opinion, the United States Supreme Court 

expressly stated three separate and distinct reasons for its "adher[ence] to an elementsonly inquiry": (1) the ACCA's use of the word "conviction" mandates it; (2) a contrary 

approach would "raise serious Sixth Amendment concerns"; and (3) "an elements-focus 

avoids unfairness to defendants" by preventing factual admissions that a defendant had 

no reason to contest in a prior proceeding from serving as the basis for an enhanced 

penalty. Mathis, 136 S. Ct. at 2252-53. Thus, in addition to the statutory language of the 

ACCA, it is clear that the Court's analysis equally was grounded in (1) safeguarding the 

rights guaranteed under the Sixth Amendment and (2) preventing manifest injustice. 

Consistent with the analysis in Brown and Mathis, we find the vehicles and 

structures itemized in the Mo. Rev. Stat. § 569.010(2) (2000) are alternative factual ways 

to prove inhabitable structure, an element required to prove the crime of second-degree 

burglary in Missouri. We do not know whether Fahnert's 2007 conviction was for 

burglary of a structure where a person lived or burglary of a structure used for overnight 

accommodation of persons, both of which would qualify as a person felony under K.S.A. 

2016 Supp. 21-5807. But we do know that Fahnert's burglary conviction under Mo. Rev. 

Stat. § 569.170 (2000) was not contingent on a finding that he committed burglary of a 

structure where a person lived or burglary of a structure used for overnight 

accommodation of persons. His conviction was contingent on proof that he committed 

burglary of an inhabitable structure. The manner in which the inhabitable structure was

used is not an element of second-degree burglary under Mo. Rev. Stat. § 569.170 and is 
18

immaterial to whether the elements of the crime of conviction sufficiently match the 

elements of burglary of a dwelling in Kansas. 

Despite the difference in our opinions regarding an alternative element to the 

crime of second-degree burglary in Missouri and an alternative factual way to prove that

element, we do agree with the panel in Sodders on an issue that, although not analyzed in 

Sodders, is a significant point of law. Both this panel and the panel in Sodders decided 

the sentencing court misclassified a prior out-of-state burglary conviction as a person 

offense by applying K.S.A. 2016 Supp. 21-6811(e), which governs classification of outof-state convictions in scoring an offender's criminal history. This is significant because 

K.S.A. 2016 Supp. 21-6811(d), which is set forth in a subsection of its own separate and 

apart from the procedure for classifying prior out-of-state convictions, governs 

classification of prior burglary convictions. Under K.S.A. 2016 Supp. 21-6811(d), the 

sentencing court's decision regarding classification of a prior burglary conviction as a 

person or nonperson offense is based solely on whether the prior conviction involved a 

dwelling and does not require a comparability analysis.

K.S.A. 2016 Supp. 21-6811 does not indicate whether it is subsection (e) or 

subsection (d) that governs the classification process when, as here, the prior offense 

qualifies as both an out-of-state conviction and as a prior burglary conviction. But the 

classification of a prior offense can vary based on which process is used. If K.S.A. 2016 

Supp. 21-6811(e) is used, the court is required to consider whether the out-of-state 

burglary statute of conviction is similar in nature and covers a type of criminal conduct 

similar to the Kansas burglary statute. If K.S.A. 2016 Supp. 21-6811(d) is used, however, 

the court's process for classifying a prior burglary conviction as a person or nonperson 

offense is limited to only one query: whether the prior offense included a dwelling 

element. In this process, the only element of a prior out-of-state burglary conviction 

required to be similar in nature to the Kansas burglary statute is the type of structure 

burglarized. Although the dwelling element is key to the person or nonperson 
19

classification of an offense in Kansas, the limited analysis under K.S.A. 2016 Supp. 21-

6811(d) excludes the possibility that some other element of the out-of-state burglary 

conviction is not similar in nature and does not cover a type of criminal conduct similar

to the Kansas burglary statute. If the elements of the prior out-of-state burglary statute are 

not similar in nature and do not cover a type of criminal conduct similar to the elements 

of the current Kansas burglary statute, however, the Kansas offense is not comparable

under K.S.A. 2016 Supp. 21-6811(e)(3), which in turn would mean that the out-of-state 

conviction would have to be classified as a nonperson offense. 

Although there is no legislative history to explain the variance between the process 

in K.S.A. 2016 Supp. 21-6811(d) (formerly K.S.A. 21-4711[d]) for classifying a prior 

burglary conviction as a person or nonperson offense and the process in K.S.A. 2016 

Supp. 21-6811(e) (formerly K.S.A. 21-4711[e]) for classifying a prior out-of-state 

conviction as a person or nonperson offense, we note the statute containing both of these 

provisions was enacted as part of the KSGA. L. 1992, ch. 239, sec. 11. In enacting the 

KSGA, the legislature designated the majority of then-existing crimes as either person,

nonperson, or unclassified. Thus, every offense in the Kansas Criminal Code that existed 

before July 1, 1993, also existed after July 1, 1993, but with a designation of person or 

nonperson. The offense of burglary, however, was unique. Although Kansas did not 

distinguish burglary as a person or nonperson crime before 1993, the legislature included 

such a distinction when it enacted the KSGA. So after 1993, burglary of a dwelling was 

designated as a person offense and burglary of a nondwelling was designated as 

nonperson offense. Because of this, it appears the legislature believed it necessary to 

include subsection (d) to the criminal history classification statute in order to separately 

explain the newly created distinction in classifying prior Kansas burglaries as person or 

nonperson crimes for purposes of scoring criminal history. 

The varying results based on which subsection of the statute is applied to classify 

an out-of-state burglary as a person or nonperson offense has generated an inconsistent 
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line of cases from our court. See State v. Moore, 52 Kan. App. 2d 799, 815-16, 377 P.3d 

1162 (2016), rev. granted 305 Kan. __ (December 13, 2016) (collecting inconsistent 

cases from other panels). In Moore, the defendant argued his prior burglary conviction in 

Oregon should not count as a person felony for criminal history purposes in sentencing 

him for the current conviction. In support of this argument, the defendant pointed out that 

the intent element of the Oregon burglary statute was broader than the intent element in 

the comparable Kansas statute. Because of this statutory difference, the defendant 

claimed the Kansas burglary statute was not comparable to the Oregon statute and since 

there was no comparable Kansas crime, the prior conviction must be classified as 

nonperson. Moore, 52 Kan. App. 2d at 809 (quoting K.S.A. 2015 Supp. 21-6811[e][3] 

["'If the state of Kansas does not have a comparable offense in effect on the date the 

current crime of conviction was committed, the out-of-state conviction shall be classified 

as a nonperson crime.'"]). But the panel in Moore was not persuaded by this argument. 

Although the panel used the process in K.S.A. 2015 Supp. 21-6811(e)(3) to begin the 

classification process of the Oregon prior burglary conviction, the panel ultimately 

shifted its analysis to the limited burglary classification process in K.S.A. 2015 Supp. 21-

6811(d), concluding: "[T]he dwelling element is the only thing that separates person 

burglary from nonperson burglary; in other words, the level of intent required for 

nonperson burglary is the same as person burglary." Moore, 52 Kan. App. 2d at 814. 

Because the panel in Moore ultimately utilized the process in K.S.A. 2015 Supp. 

21-6811(d) to classify the prior out-of-state burglary conviction as a person or nonperson 

offense, the court necessarily limited its analysis to whether the prior offense included a 

dwelling element. As a result, the only element of the prior out-of-state burglary 

conviction required to be similar in nature to the Kansas burglary statute under K.S.A. 

2015 Supp. 21-6811(d) was the type of structure burglarized: the dwelling. Because this 

process excluded the possibility that some other element of the out-of-state burglary 

statute of conviction was not similar in nature and did not cover a type of criminal 

conduct similar to the Kansas burglary statute, i.e., intent, we disagree with the panel's 
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analysis. As the court did in Sodders, we conclude K.S.A. 2016 Supp. 21-6811(e) 

governs the classification process when the prior offense qualifies as both an out-of-state 

conviction and as a prior burglary conviction. 

Based on the discussion above, we conclude:

 K.S.A. 2016 Supp. 21-6811(e) governs the classification of prior convictions as a 

person or a nonperson offense for purposes of scoring criminal history when the 

prior offense qualifies as both an out-of-state conviction and as a prior burglary 

conviction.

 The modified categorical approach is inapplicable in this particular case because 

even if the alternative phrasing of "building" and "inhabitable structure" are 

alternative elements that render Mo. Rev. Stat. § 569.170 divisible, neither 

element matches the dwelling location element in K.S.A. 2014 Supp. 21-5807. 

 The vehicles and structures listed in the Mo. Rev. Stat. § 569.010(2) (2000) are 

alternative factual ways to satisfy the locational element of inhabitable structure, 

which is required to prove the crime of second-degree burglary of an inhabitable 

structure under Mo. Rev. Stat. § 569.170 (2007), the statute in Missouri similar in 

nature that covers a similar type of criminal conduct in relation to the comparable 

Kansas burglary statute. 

 The sentencing court erred by going beyond simply comparing the statutory 

elements to review documents and make a factual finding that Fahnert's Missouri 

burglary conviction had been committed in a dwelling and because Fahnert's 

sentence was enhanced as a result of that finding, the sentencing court engaged in 

improper judicial factfinding that violated Fahnert's constitutional right to trial by 

jury under Apprendi. 
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 Under Dickey, Fahnert's prior Missouri burglary conviction should have been 

classified as a nonperson felony because the burglary statute in Missouri did not 

include a dwelling element and the definition of inhabitable structure as that term 

was used in the statute included vehicles and structures used or intended to be used 

for purposes other than a human habitation, home, or residence. 

Based on these conclusions, we vacate Fahnert's sentence and remand to the 

district court to classify Fahnert's prior Missouri burglary conviction as a nonperson 

felony and resentence him after such reclassification.

Sentence vacated and case remanded with directions.