State v. Gachelin ( 2024 )

NOT DESIGNATED FOR PUBLICATION
No. 125,859
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
PRESTON GACHELIN,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Submitted without oral argument.
Opinion filed March 22, 2024. Convictions affirmed in part and reversed in part, sentence vacated in part,
and case remanded with directions.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general, for appellee.
Before GARDNER, P.J., MALONE, J., and TIMOTHY G. LAHEY, S.J.
PER CURIAM: Preston Gachelin appeals his convictions for criminal use of
weapons and felony interference with law enforcement, arguing these convictions lack
sufficient evidence. The State concedes that Gachelin's weapons conviction must be
reversed. On that count, the parties agree that the statute requires the State to prove a
prior misdemeanor conviction, but the evidence showed only court-martial offenses. We
agree that this is insufficient and reverse Gachelin's conviction on the weapons offense.
We affirm Gachelin's remaining conviction and remand for resentencing.
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Factual and Procedural Background
Preston Gachelin's ex-girlfriend, J.W., made an emergency call to police in
September 2020, reporting Gachelin for a domestic disturbance. Several police officers,
including Steven Abasolo and Samuel Morrison, responded to the call. Dispatch relayed
to officers what J.W. had told them—that Gachelin was making threats outside J.W.'s
residence and was armed with a gun. Abasolo thus thought that the incident could be "a
potential shooting incident" involving a felony offense. Morrison did not believe that a
shooting had already occurred but likewise prepared for "a potential shooting or
something of that nature."
When Abasolo arrived at the scene, he saw two men in the residence's front yard.
He yelled, "Wichita Police," and other officers on the scene were commanding, "Show
me your hands," expecting one of the men to have a gun. One man put his hands up and
walked toward Abasolo. The other man, Gachelin, started walking but did not raise his
hands. Instead, Gachelin walked toward a car with his hands in his hoodie.
Abasolo saw Gachelin crouch down by the car, which made him think Gachelin
was taking a "shooter's position" and using the car as cover. Abasolo pointed his gun at
Gachelin and notified dispatch and the other officers on his radio. He then heard
something metal hit the ground near Gachelin's feet, saw Gachelin stand up with his
hands in the air, and saw him kick a gun underneath the car.
Several officers arrived at the scene at the same time as Morrison. Morrison saw
Gachelin in the front yard, "throwing objects around" and using "confrontational body
language." Morrison also saw Gachelin walk behind the car but did not see him drop a
gun.
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Police arrested Gachelin and recovered a handgun from the area where he had
kicked it. Another officer, Steven Schmitt, later test-fired the gun and confirmed that it
was functioning.
Morrison interviewed Gachelin after his arrest. Gachelin explained that the
incident had started over a parentage dispute with J.W. When Morrison asked about the
gun recovered at the scene, Gachelin responded that he always carried the gun and that he
had bought it in Florida.
The State first charged Gachelin with felony criminal use of weapons under
K.S.A. 2020 Supp. 21-6301(a)(18) and misdemeanor disorderly conduct under K.S.A.
2020 Supp. 21-6203(a)(3). Gachelin moved unsuccessfully to dismiss the weapons
charge after the preliminary hearing. The State later amended the complaint by adding the
charge of felony interference with law enforcement contrary to K.S.A. 2020 Supp. 21-
5904(a)(2).
The district court held a preliminary hearing at which Abasolo, Morrison, and
Schmitt testified. The State admitted certified documents showing the United States
Army had court martialed Gachelin and had found him guilty of several military offenses.
Gachelin eventually waived his right to a jury trial and had a bench trial based on
stipulated facts. The district court accepted the parties' motion to incorporate the
testimony and exhibits presented at the preliminary hearing, including the court-marital
documents.
The stipulated facts noted Gachelin's previous objection to the use of his court-
martial papers. Gachelin maintained that the documents did not establish a prior
misdemeanor conviction for domestic violence. Although Gachelin admitted that in May
2017, he had pleaded guilty to five "specifications of Article 128 of the Uniform Code of
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Military Justice" and had been court martialed for those offenses, he disputed that these
offenses constituted domestic violence misdemeanors.
After considering the parties' arguments and Gachelin's renewed motion to dismiss
the weapons charge, the district court denied Gachelin's motion and found him guilty as
charged. The district court sentenced Gachelin to a controlling term of 16 months in
prison for his criminal use of a weapon, 30 days in jail for disorderly conduct, and 8
months in prison for interference with law enforcement. The district court ran the
sentences concurrent and granted Gachelin probation for 12 months. Gachelin timely
appeals.
Does Sufficient Evidence Support Gachelin's Criminal Use of Weapons Conviction?
The State charged Gachelin with criminal use of weapons under K.S.A. 2020
Supp. 21-6301(a)(18). This statute requires proof of knowingly "possessing any firearm
by a person who, within the preceding five years, has been convicted of a misdemeanor
for a domestic violence offense, or a misdemeanor under a law of another jurisdiction
which is substantially the same as such misdemeanor offense." K.S.A. 2020 Supp. 21-
6301(a)(18); see also K.S.A. 2020 Supp. 21-6301(m)(1) (defining "domestic violence" as
"the use or attempted use of physical force, or the threatened use of a deadly weapon,
committed against a person with whom the offender is involved or has been involved in a
dating relationship or is a family or household member").
Gachelin correctly states that to prove criminal use of weapons under the statute,
the State had to show he: (1) knowingly; (2) possessed a firearm; and (3) received a
misdemeanor conviction for a domestic violence offense within the preceding five years.
Gachelin challenges only the third element, claiming his prior court-martial offenses
cannot be considered prior misdemeanor convictions under the statute. The State agrees.
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Standard of Review
When the sufficiency of the evidence is challenged in a case decided on stipulated
facts, as here, this court is in as good a position as the district court to examine and
consider the evidence and to determine what the facts establish as a matter of law. So our
appellate review is unlimited. See State v. Scheuerman, 314 Kan. 583, 587, 502 P.3d 502(2022). Statutory interpretation also presents a question of law over which we have
unlimited review. State v. Betts, 316 Kan. 191, 197, 514 P.3d 341 (2022). But we view
the facts "in the light most favorable to the State when testing their sufficiency." State v.
Darrow, 304 Kan. 710, 715, 374 P.3d 673 (2016). And when reviewing the parties'
stipulations, we cannot ignore the circumstantial evidence presented by the stipulations
and the inferences fairly deducible from them. 304 Kan. at 716.
Analysis
Defendants are generally bound to their stipulated facts, and both trial and
appellate courts must render judgment based on those facts. Double M Constr. v. Kansas
Corporation Comm'n, 288 Kan. 268, 269, 202 P.3d 7 (2009). But see State v. Braun, 312
Kan. 3, 8, 470 P.3d 1286 (2020) (parties may limit stipulated facts for certain uses); State
v. Weber, 297 Kan. 805, 814, 304 P.3d 1262 (2013) (although defendant may stipulate to
fact of prior conviction, court is not bound as to legal effect of prior conviction); Wolfe
Electric, Inc. v. Duckworth, 293 Kan. 375, 400, 266 P.3d 516 (2011). But this rule does
not affect our review here because Gachelin properly disputed the facts relevant to his
argument on appeal.
At trial, the State presented evidence of Gachelin's court marital for violating the
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892, for violating a no-contact
order. Gachelin also pleaded guilty to violating 10 U.S.C. § 928, which defines assault as
follows:
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"(a) Assault.—Any person subject to this chapter who, unlawfully and with force
or violence—
(1) attempts to do bodily harm to another person;
(2) offers to do bodily harm to another person; or
(3) does bodily harm to another person;
"is guilty of assault and shall be punished as a court-martial may direct.
"(b) Aggravated assault.—Any person subject to this chapter—
(1) who, with the intent to do bodily harm, offers to do bodily harm with a
dangerous weapon;
(2) who, in committing an assault, inflicts substantial bodily harm or grievous
bodily harm on another person; or
(3) who commits an assault by strangulation or suffocation;
"is guilty of aggravated assault and shall be punished as a court-martial may
direct.
"(c) Assault with intent to commit specified offenses.—
(1) In general.—Any person subject to this chapter who commits assault with
intent to commit an offense specified in paragraph (2) shall be punished as a court-martial
may direct.
(2) Offenses specified.—The offenses referred to in paragraph (1) are murder,
voluntary manslaughter, rape, sexual assault, rape of a child, sexual assault of a child,
robbery, arson, burglary, and kidnapping."
Gachelin stipulated that he had pleaded guilty to five offenses under these sections
of the UCMJ, but he disputed that he had been convicted of a misdemeanor for a
domestic violence offense as required by K.S.A. 2020 Supp. 21-6301(a)(18).
The State presented detailed evidence showing the facts underlying Gachelin's
military offenses. That evidence showed that Gachelin had committed violent acts against
a woman he had dated while stationed in Hawaii. The military had court martialed
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Gachelin for violating a no-contact order with that woman, for committing several
physically violent acts against her, and for trying to dissuade her from testifying against
him. Thus the State argued that Gachelin's court-martial offenses were factually similar to
general domestic violence crimes under Kansas law. Yet it did not argue that the
provisions of the UCMJ Gachelin violated were substantially the same as K.S.A. 2020
Supp. 21-6301(a)(18) or any other applicable statute.
Insufficient evidence supports Gachelin’s conviction.
As the parties correctly explain, K.S.A. 2020 Supp. 21-6301(a)(18) requires proof
of one or more previous misdemeanor convictions for a domestic violence offense. The
conviction must be under Kansas law or the law of another jurisdiction that is
substantially the same as the Kansas statute. K.S.A. 2020 Supp. 21-6301(a)(18).
Although the statute allows courts to consider out-of-state convictions, the statute does
not refer to court martials. When reviewing missing language or statutory gaps like the
one presented here, our appellate courts consistently hold that we cannot read such
language into the statute. See State v. Baumgarner, 59 Kan. App. 2d 330, 336, 481 P.3d
170 (2021) (rejecting State's invitation to read "adjudicate" into K.S.A. 2019 Supp. 21-
6301[a][13]).
The often-repeated rules of statutory construction state that the intent of the
Legislature governs if that intent can be determined. When a statute is plain and
unambiguous, an appellate court should not speculate about the legislative intent behind
that clear language and should avoid reading something into the statute that is not readily
found in its words. State v. Keys, 315 Kan. 690, 698, 510 P.3d 706 (2022). And we
strictly construe criminal statutes in favor of the accused. State v. Griffin, 312 Kan. 716,
720, 479 P.3d 937 (2021).
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Our Supreme Court applied this strict construction in State v. Paxton, 201 Kan.
353, 365, 440 P.2d 650 (1968), holding that a prior conviction by court martial could not
be used to impose an enhanced sentence under the former habitual criminal statute,
K.S.A. 21-107a. The rationale for this holding focused on the difference between military
offenses and civil law and on the requirement that courts enforce statutes as they are
plainly written:
"Our statute applies when there are former felony convictions committed 'in or out of this
state.' . . . Courts-martial convictions frequently relate to offenses of a strictly military
character which have no counterpart in the civil law, such as desertion, willful
disobedience of a lawful order of a superior officer, and misbehavior before the enemy.
We cannot imagine the legislature contemplated that K.S.A. 21-107a was to be applied to
a person previously convicted of an offense peculiar only to the military establishment.
On the other hand, were we to say that only those military convictions were to be
recognized which would be felonies as defined by the Kansas law, we would, in effect, be
adding a requirement to the statute that any foreign conviction be a felony under our law.
This we cannot do." Paxton, 201 Kan. at 365.
See also State v. Wimberly, 246 Kan. 200, 212, 787 P.2d 729 (1990) (applying Paxton to
amended version of habitual criminal statute and noting Legislature's failure to amend
statute to avoid Paxton's application); State v. Floyd, 218 Kan. 764, 767-68, 544 P.2d
1380 (1976) (applying Paxton's strict construction analysis in rejecting claim that prior
conviction under municipal code could be used to enhance state conviction for possession
of marijuana from class A misdemeanor to class D felony). Our Supreme Court precedent
thus suggests that unless a statute specifically so provides, court-martial offenses cannot
be used as an element of a crime to prove a conviction. See generally Baumgarner, 59
Kan. App. 2d at 336 (reflecting general approach that courts avoid reading words into
statute which are not there).
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And as the parties note, in other contexts, our Legislature has specifically
addressed court martials, stating they should be considered out-of-state convictions or
adjudications. See K.S.A. 21-6811(e)(4) (including military courts in outlining the
determination of an offender's criminal history classification in the presumptive
sentencing guidelines grids); see also K.S.A. 65-2836 listing instances license in healing
arts may be revoked, including where "licensee has been convicted in a special or general
court-martial"); K.S.A. 74-5605 (defining qualification of applicant for law enforcement
certification and specifying that "conviction" includes "rendering of judgment by a
military court martial pursuant to the uniform code of military justice"). So the
Legislature knows how to use such language when it desires, yet it chose not to do so in
K.S.A. 2020 Supp. 21-6301(a)(18) or related provisions.
Lastly, the State did not show that "the law of another jurisdiction"—the UCMJ—
is "substantially the same" as the Kansas statute. K.S.A. 2020 Supp. 21-6301(a)(18).
Although some comparisons were made between the facts underlying Gachelin's court
marshals and generic facts in domestic violence cases, the necessary comparison was not
made between the elements of UCMJ's assault law and the elements of Kansas' domestic
violence law, as K.S.A. 2020 Supp. 21-6301(a)(18) requires.
For these reasons, we agree with the parties that the district court erred by finding
that Gachelin's court martials showed his prior conviction of a misdemeanor for a
domestic violence offense, or a misdemeanor under a law of another jurisdiction which is
substantially the same as such misdemeanor offense. K.S.A. 2020 Supp. 21-6301(a)(18).
We thus reverse Gachelin's conviction under K.S.A. 2020 Supp. 21-6301(a)(18) for
criminal use of weapons.
We find it unnecessary to address Gachelin's two other arguments: that his
military offenses are not "substantially the same" as any domestic violence offense in
Kansas, and that the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.
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Ct. 2348, 147 L. Ed. 2d 435 (2000), by engaging in fact-finding about his court martials.
Having decided that reversal is required, we have no basis for deciding either of these
questions. See State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012) (appellate
courts do not decide moot questions or render advisory opinions).
Remand is required.
The district court designated Gachelin's criminal use of weapons conviction as the
primary count at sentencing. Because we are reversing that conviction, resentencing is
required. See K.S.A. 21-6819(b)(5) ("In the event a conviction designated as the primary
crime in a multiple conviction case is reversed on appeal, the appellate court shall remand
the multiple conviction case for resentencing."); see also State v. Guder, 293 Kan. 763,
Syl. ¶ 3, 267 P.3d 751 (2012) ("The Kansas Sentencing Guidelines Act does not grant
district courts the authority to modify sentences following remand unless the primary
conviction was reversed on appeal."). It is also likely that the district court will need to
conduct a new presentence investigation before resentencing. See State v. Patry, 266
Kan. 108, 111, 967 P.2d 737 (1998) (finding criminal convictions in separate case after
sentencing should be used in determining criminal history under Act when resentencing,
when interpreting precursor to K.S.A. 21-6810[a]).
We thus reverse Gachelin's conviction for criminal use of weapons, vacate his
sentence, and remand with directions for resentencing.
Does Sufficient Evidence Support Gachelin's Interference with Law Enforcement
Conviction?
Gachelin's second argument is that insufficient facts support his conviction for
felony interference with a law enforcement officer. That charge was because Gachelin
had thrown his gun under a car after officers had demanded that he raise his hands in the
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air. We review the entire record in a light most favorable to the State and ask whether we
are convinced a rational fact-finder could have found Gachelin guilty of felony
interference with law enforcement beyond a reasonable doubt. We do not reweigh
evidence, resolve evidentiary conflicts, or make witness credibility determinations. State
v. Brown, 305 Kan. 674, 689, 387 P.3d 835 (2017).
Interference with law enforcement includes "concealing, destroying or materially
altering evidence with the intent to prevent or hinder the apprehension or prosecution of
any person." K.S.A. 2020 Supp. 21-5904(a)(2). See also PIK Crim. 4th 59.021 (2018
Supp.). If the interference occurs under subsection (a)(2) within the context of a felony
investigation, then the interference is a severity level 8, nonperson felony. K.S.A. 2020
Supp. 21-5904(b)(4)(B). Gachelin contends that the State failed to prove that his
interference should be classified as a felony.
Whether an interference charge is classified as a felony or misdemeanor depends
on whether the officer who is being interfered with believes they are carrying out an
official duty related to a felony or to a misdemeanor. State v. Hudson, 261 Kan. 535, 538-
39, 931 P.2d 679 (1997); State v. Gray, 51 Kan. App. 2d 1085, 1098, 360 P.3d 472(2015), rev'd on other grounds by State v. Gray, 306 Kan. 1287, 403 P.3d 1220 (2017);
State v. Lundquist, 30 Kan. App. 2d 1148, 1154, 55 P.3d 928 (2002). When felony
charges have been filed or a felony was committed, that is enough to charge a defendant
with felony interference. State v. Seabury, 267 Kan. 431, 437, 985 P.2d 1162 (1999).
That requirement is met here, as the State charged Gachelin with felony criminal use of
weapons under K.S.A. 2020 Supp. 21-6301(a)(18), and the court later found Gachelin
guilty as charged.
And a defendant may properly be convicted of felony interference with law
enforcement even though he is not convicted of an underlying felony. See State v. Birch,
No. 121,771, 2021 WL 300785, at *6 (Kan. App. 2021) (unpublished opinion). The
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"touchstone for the classification of the offense is the reason for the officer's approaching
the defendant," i.e., whether the officer believed the approach was for a felony or
misdemeanor. Hudson, 261 Kan. at 538-39. It is "what the officer believes at the time of
pursuing a suspect determines if obstruction of official duty will be charged as a
misdemeanor or felony." Lundquist, 30 Kan. App. 2d at 1154.
Gachelin does not dispute this law but claims that nothing in the stipulated facts or
other evidence shows the responding officers reasonably believed that they were
investigating a felony. He points out that J.W. did not tell police that Gachelin had
threatened her with a gun or that she had seen a gun. She instead stated only that
Gachelin generally carried a gun and thus probably had one with him. Gachelin claims
that the officers, through dispatch, knew that he had a gun but did not know if he had it
illegally. No one alleged that he had brandished the gun, and no officer heard him make
any threats—at worst, they saw him angrily toss a tricycle. And no officer testified at trial
that he thought he was investigating a felony.
But Gachelin ignores the stipulated facts and Abasolo's testimony at the
preliminary hearing. Abasolo testified at the preliminary hearing that he believed he was
investigating a felony, and the transcript of that hearing was admitted at trial based on the
parties' motion to do so. Gachelin tacitly suggests that Abasolo's testimony lacked
credibility, but that argument requires us to reweigh the evidence or to make credibility
determinations. That we cannot do. Brown, 305 Kan. at 689.
The record also refutes Gachelin's overall claim. The district court considered a
variety of evidence when considering Gachelin's guilt, including body camera videos of
the incident. The parties' stipulated facts included these statements from investigating
officers:
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• Morrison and Abasolo saw Gachelin "angrily toss a tricycle" in the front yard of
J.W.'s home;
• Morrison and Abasolo orally commanded Gachelin to show his hands but
Gachelin "concealed his hands in the pockets of his hoodie and walked away from
the officers";
• Morrison and Abasolo continued to give verbal commands to Gachelin to stop
walking and show his hands after he first refused;
• Gachelin moved behind a car that was parked on the street and crouched behind it;
• While Gachelin was crouched behind the car, Officer Abasolo heard a heavy metal
object hit the ground;
• Abasolo saw the defendant stand up and kick an object that Abasolo recognized as
a gun further under the car, which "slid to the front of the back passenger tire";
• Abasolo relayed this information to other officers at the scene;
• Morrison heard Abasolo's statement about the gun;
• Gachelin then complied with officers' demands to get on his knees and officers
arrested him;
• Morrison read Gachelin his Miranda rights after arresting and before interviewing
him;
• Morrison asked Gachelin how J.W. knew that he had a gun;
• Gachelin replied that J.W. knew he always carried a gun, which he had bought in
Florida;
• Gachelin admitted he had thrown the gun;
• J.W. reported to police that she had told Gachelin to keep their child and to stay
away from her house, but Gachelin's responses to her revealed that he planned to
show up to fight or shoot her current boyfriend, J.K.;
• Gachelin did not tell J.W. that he had a gun but J.W. knew that Gachelin usually
carried one;
• J.W. did not see Gachelin outside of her house on the date of this incident;
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• J.K. told police that he had heard Gachelin tell J.W. over the phone that he was
going to "get this [n*****] if he is there" and to send him outside to "get dealt
with;" and
• J.K. felt threatened by Gachelin's statements and believed Gachelin planned to
shoot him, so he did not go outside or look outside for Gachelin.
The evidence shows that Gachelin made threatening, fear-inducing statements
about J.K. to J.W. Gachelin told her that he was going to "get" J.K. and to send J.K.
outside to "get dealt with." J.W. told police that she was afraid that Gachelin planned to
hurt or shoot her boyfriend. And the officers knew that Gachelin had made threats and
was outside J.W.'s residence and was carrying a gun. The officers testified that based on
the information relayed to them when dispatched, they were prepared to encounter a
potential shooting incident. Abasolo testified that he believed he was investigating a
felony. He explained that he knew Gachelin had threatened J.W. and that he had a gun.
Abasolo also testified that he kept his gun pointed at Gachelin throughout most of the
encounter and yelled commands to help effectuate an arrest.
The State correctly emphasizes that several felonies in Kansas involve threats and
firearms. See, e.g., K.S.A. 21-5412(b) (aggravated assault); K.S.A. 21-5413(b)
(aggravated battery); K.S.A. 21-5415 (criminal threat); K.S.A. 21-6308 (criminal
discharge of a firearm). Abasolo thus believed he was investigating a felony under the
circumstances, and the facts show that other officers may have held similar beliefs. The
record thus shows sufficient evidence supporting Gachelin's felony interference with law
enforcement conviction.
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Conclusion
We reverse Gachelin's conviction for criminal use of weapons. We affirm
Gachelin's conviction for felony interference with law enforcement and remand the case
for resentencing.
Convictions affirmed in part and reversed in part, sentence vacated in part, and
case remanded with directions.
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