holding that "when the crime in question is an out-of-state offense with alternative means—some of which would not be comparable to Kansas person crimes—the State's burden is to establish that the defendant committed a version of the offense supporting the person classification"
How later courts described this case
- holding that "when the crime in question is an out-of-state offense with alternative means—some of which would not be comparable to Kansas person crimes—the State's burden is to establish that the defendant committed a version of the offense supporting the person classification"
- finding criminal history score erroneous as a matter of law when the criminal history score included an out-of-state divisible statute, the defendant did not admit to his criminal history score, and the PSI report did not identify which version of the statute the defendant was convicted under; however, the court also did not consider the burden of proof after defendant's criminal history had been established
- explaining that ". . . it is the State's burden to prove by a preponderance of the evidence that a defendant committed a crime for which classification is appropriate"
- noting that out-of-state statutes are only comparable to Kansas statutes under Wetrich when all elements of the out-of-state offense are narrower than or identical to the Kansas offense
Written by the judges who cited it.
The opinion
Johnson, J., concurring in part and dissenting in part:
Addressing the issues in reverse order, I agree with the majority's result on **1279 the firearms enhancement, i.e., the district court must resentence Obregon without the enhancement. With respect to the criminal history issue, I agree that the State failed to present sufficient evidence to support the classification of the Florida battery conviction as a person felony. That insufficiency of evidence should result in our vacating the sentence and remanding for resentencing with a criminal history score of C, which the majority identifies as the proper score when the Florida conviction is classified as nonperson.