State v. Rodriguez, 110346

Background

On Dec. 29, 2011, Tiofilo Rodriguez battered his girlfriend Alicia and confined her and her two sons in a bedroom; police rescued them and Rodriguez was arrested. He was tried and convicted of aggravated kidnapping (Alicia), kidnapping (the sons), aggravated battery, criminal threat and related counts.
The information alleged Rodriguez "take or confine" Alicia "accomplished by force, threat, or deception, and bodily harm is inflicted upon the person kidnapped," but did not expressly allege the specific intent required by the kidnapping statute (e.g., to inflict bodily injury or to terrorize).
At sentencing, the presentence report aggregated two Colorado third-degree assault misdemeanors and a local misdemeanor battery into a single person felony for criminal-history scoring, increasing Rodriguez' score from D to B and producing a 774‑month controlling sentence.
Rodriguez appealed, raising (1) that the charging information was defective for omitting the kidnapping-specific intent element, and (2) that the Colorado misdemeanors were misclassified/aggregated for Kansas criminal-history purposes.
The Kansas Supreme Court (after State v. Dunn changes to charging-document law) held the information failed to allege the requisite intent for kidnapping but that the omission was harmless because Rodriguez and defense counsel understood the theory and defended on that basis; however, the court held the Colorado convictions were not comparable person offenses and thus could not be aggregated — vacating the sentence and remanding for resentencing with a lower criminal-history score.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the information to charge aggravated kidnapping	State: the information alleged confinement by force/threat and that bodily harm was inflicted, which sufficed under Dunn's facts-vs.-statute test.	Rodriguez: omission of the statutory specific intent (to inflict bodily injury or terrorize) rendered the information defective and required reversal.	The information did not allege the requisite intent, so it was statutorily insufficient, but the defect was harmless — Rodriguez' substantial rights were not affected; conviction stands.
Classification/aggregation of out-of-state misdemeanors for criminal history	State: Colorado third-degree assault convictions are comparable to Kansas person misdemeanors (and may be aggregated) under prior Court of Appeals precedent.	Rodriguez: Colorado statute allows conviction on criminal negligence (not recklessness); Kansas has no comparable negligent-with-weapon person offense, so the Colorado convictions are nonperson and cannot be aggregated.	Colorado third-degree assault (which includes criminal negligence) is not comparable to Kansas person offenses requiring recklessness; the out-of-state misdemeanors cannot be aggregated as a person felony. Sentence vacated and remanded for resentencing with criminal-history score D.

Key Cases Cited

State v. Dunn, 304 Kan. 773 (Kan. 2016) (charging documents judged by alleged facts versus statutory definition; overruling prior element-based jurisdiction approach)
State v. Hall, 246 Kan. 748 (Kan. 1990) (prior approach to defective charging instruments)
State v. LaGrange, 21 Kan. App. 2d 477 (Kan. Ct. App. 1995) (Court of Appeals comparability holding regarding Colorado third-degree assault)
State v. Remmers, 278 Kan. 598 (Kan. 2004) (recklessness requires conscious disregard; distinguishes negligence)
State v. Keel, 302 Kan. 560 (Kan. 2015) (statutory interpretation of KSGA and classification issues)