State v. Kelly

NOT DESIGNATED FOR PUBLICATION
No. 123,118
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DAVID AARON KELLY,
Appellant.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; MARTIN J. ASHER, judge. Opinion filed March 25,
2022. Affirmed in part, sentence vacated in part, and case remanded with directions.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Megan Williams, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HURST, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: A jury convicted David Aaron Kelly of criminal possession of a
firearm by a convicted felon, fleeing or attempting to elude a police officer, and
transportation of liquor in an open container. Kelly appeals, arguing that his conviction
for fleeing or attempting to elude a police officer was not supported by sufficient
evidence and violated statutory prohibitions against prosecuting a crime for which the
defendant was previously prosecuted by another state. He also contends that his
conviction for criminal possession of a firearm by a convicted felon should be reversed
because his underlying felony criminal threat conviction may be unconstitutional. This
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court agrees with Kelly, but only in part, and affirms his conviction for fleeing or
attempting to elude a police officer but vacates his sentence for criminal possession of a
firearm by a convicted felon. This court remands the case to the district court to
determine the constitutionality of Kelly's underlying criminal threat conviction.
FACTUAL AND PROCEDURAL BACKGROUND
All the charges and appeals in this case relate to a single event on July 30, 2018,
when Kevin Lis and Paul Giddens went to a home in Leavenworth, Kansas to address a
furnace problem. Lis and Giddens were in a white van outside the property when Kelly
approached them in a black Jeep. According to Lis, Kelly asked the men to follow him in
their van, which Lis did because he "thought [Kelly] needed some help." For his part,
Kelly said he saw Lis and Giddens pointing at his house from their van and he
approached the men to determine why they were pointing at his house. Kelly claims that
after he confronted the men, Lis began following Kelly wholly unprompted. After a short
while, Lis stopped following Kelly.
At that point, Kelly turned his vehicle around and began following Lis. Lis then
stopped the van to "see what [Kelly] want[ed]." Lis said he got out of the driver's seat and
walked to the back of the van, and Kelly pulled up at an angle by the van. Lis said that
Kelly was "screaming" at Lis and Giddens and alleged that Kelly stuck his hand outside
the Jeep while holding a gun and pulled the trigger. Kelly said he had a black phone in
his hand, rather than a gun, and was attempting to take pictures of Lis and the van. After
this brief encounter, Kelly left the area. Lis returned to the van and called 911 to report
the incident. Officer Bradley Brandon of the Leavenworth Police Department arrived at
the scene within a few minutes.
On scene, Officer Brandon ran the tag number of the black Jeep and realized he
was familiar with the Jeep and went to Kelly's house to locate the vehicle. Once there,
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Officer Brandon saw the black Jeep parked with Kelly sitting in the driver's seat. Because
Lis had reported Kelly having a gun, Officer Brandon waited for another officer to arrive
before approaching Kelly. But before another officer could arrive, Kelly drove off and
Officer Brandon began following him but said he did not activate his lights or sirens
because he still did not have a backup officer.
After following Kelly for a bit, Officer Ezekiel Stevenson eventually joined
Officer Brandon behind the Jeep and both officers activated their patrol cars' lights and
sirens. Kelly did not stop. In fact, a car chase ensued through Leavenworth, Kansas over
the state line into Missouri, and crossed back into Kansas. The Platte County, Missouri
Police Department and Kansas Highway Patrol were notified of the chase and assisted the
Leavenworth officers. Kansas Highway Patrol placed spike strips on the road at the state
line. After Kelly crossed back into Kansas, highway patrol officers performed a "PIT
maneuver" on the Jeep—hitting the rear of the Jeep, rendering it immobile. Officers
removed Kelly from the Jeep and placed him in handcuffs.
Officer Ward Richards III of the Leavenworth Police Department searched the
Jeep, finding an opened bottle of Hennessy, a 9-millimeter handgun, and a red container
holding what appeared to be marijuana in the middle console. Kelly was arrested and
charged with aggravated assault, criminal possession of a firearm by a convicted felon,
fleeing or attempting to elude a police officer, unlawful possession of a controlled
substance, and transportation of liquor in an open container.
At the trial, Kelly stipulated that he had a prior felony which the State used to
support his conviction for criminal possession of a firearm by a convicted felon. After a
one-day trial held on January 23, 2020, a jury found Kelly guilty of criminal possession
of a firearm by a convicted felon, fleeing or attempting to elude a police officer, and
transportation of liquor in an open container. The jury acquitted Kelly of aggravated
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assault and unlawful possession of a controlled substance. Kelly was sentenced to 18
months of probation with an underlying prison term of 14 months. Kelly appealed.
DISCUSSION
Kelly appeals two of his convictions. Kelly claims there was insufficient evidence
to support his conviction for fleeing or attempting to elude a police officer, and that the
conviction violates statutory double jeopardy prohibitions. Kelly also contends that this
court should reverse his conviction for criminal possession of a firearm by a convicted
felon because his underlying felony conviction for criminal threat may be
unconstitutional.
I. Sufficient evidence supports Kelly's conviction for fleeing or attempting to
elude a police officer.
The jury convicted Kelly of fleeing or attempting to elude a police officer under
K.S.A. 2018 Supp. 8-1568(b)(1)(E) and (c)(2), which provide that any driver who
willfully fails to bring their vehicle to a stop for law enforcement when given visual or
audible signals to stop their vehicle, and who "commits five or more moving violations"
shall be guilty of a severity level 9 person felony. Kelly contends that the State failed to
prove that he committed five or more moving violations because the State did not address
"what a moving violation was and how it was defined." Kelly relies heavily on State v.
Richardson, 290 Kan. 176, 183, 224 P.3d 553 (2010), where the Kansas Supreme Court
reversed a fleeing conviction because the alleged moving violations were not identified or
defined for the jury.
When a criminal defendant challenges the sufficiency of evidence, this court
reviews the entire record in a light most favorable to the State and determines whether the
State presented sufficient evidence upon which a rational fact-finder could have found the
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defendant guilty beyond a reasonable doubt. Circumstantial evidence and proper logical
inference drawn from such evidence can be sufficient to support convictions for even the
most serious crimes. In its review, this court shall not reweigh evidence, resolve
evidentiary conflicts, or make witness credibility determinations. State v. Chandler, 307
Kan. 657, 668-69, 414 P.3d 713 (2018). This court will only look to evidence supporting
the verdict and will uphold a conviction so long as "the essential elements of the charge
are sustained by any competent evidence." State v. Van Pham, 234 Kan. 649, 668, 675
P.2d 848 (1984).
Kelly's reliance on Richardson is misplaced. In Richardson the defendant claimed
the jury instructions failed to identify the moving violations the defendant allegedly
committed and failed to define those moving violations under the law. As the State here
correctly notes, the jury instruction used at Kelly's trial both listed the moving violations
being alleged and provided legal definitions of each violation. Specifically, the
instruction read:
"The State alleges the defendant committed the following moving violations:
1. Speeding approximately 50 mph in a 30 mph zone (Broadway Street).
2. Failure to come to complete stop prior to turning (Spruce Street).
3. Failure to use turn signal (Spruce Street).
4. Passing in a no passing zone (Spruce Street).
5. Failure to use turn signal (Seventh Street).
6. Failure to use turn signal (Walnut Street).
7. Failure to stop at stop sign (Walnut Street).
8. Speeding approximately 60 mph in a 30 mph zone (Broadway Street).
9. Speeding approximately 50 mph in a 20 mph zone (Broadway Street downtown).
10. Failure to stop at stop signal (Cherokee Street).
11. Failure to stop at stop signal (Shawnee Street).
12. Failure to stop at stop sign (Metropolitan Ave.).
13. Failure to stop at stop signal (Metropolitan and Seventh)."
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"The Uniform Act regulating Traffic provides:
1. A person approaching a stop sign shall stop at a clearly marked stop line, or if none,
before entering the crosswalk on the near side of the intersection, or if none, then at
the point nearest the intersecting roadway before entering it.
2. That no person shall drive in excess of the posted speed limit.
3. No person shall drive a vehicle at a speed greater than is reasonable and prudent
under the conditions and having regard to the actual hazards then existing.
4. A personal shall signal continuously for one hundred (100) feet traveled of intention
to turn upon a roadway.
5. The driver of any vehicle shall obey the instructions of any official traffic-controlled
device.
6. No driver shall drive on the left side of the roadway within such no-passing zone or
on the left side of any pavement striping designed to mark such no-passing zone
throughout its length."
The State played a dash camera video of the car chase for the jury and submitted it
into evidence. This video captures Kelly's vehicle as it is traveling on the roads specified
in the jury instruction. Additionally, Officer Stevenson testified about the car chase and
identified the moving violations he witnessed. While Kelly claims Officer Stevenson only
used the term "moving violation" to describe three of Kelly's traffic infractions, Officer
Stevenson labeled over five traffic infractions as "moving violation[s]" in his testimony.
Moreover, because the jury instructions provided the jury with the State's alleged moving
violations and definitions for each—the jury was capable of logically inferring from
Officer Stevenson's testimony and the dash camera video—which traffic infractions met
those elements of the charge. Considering this evidence in a light most favorable to the
State, including circumstantial evidence and proper logical inferences, it is clear a
rational fact-finder could have found beyond a reasonable doubt that Kelly committed
five or more moving violations.
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Kelly also argues that the State was not permitted to use multiple instances of the
same type of moving violation to support his conviction under K.S.A. 2018 Supp. 8-
1568(b)(1)(E). See State v. Castleberry, 301 Kan. 170, 339 P.3d 795 (2014). But Kelly
misstates Castleberry. Kelly relies on language from Castleberry unrelated to that
defendant's charge of fleeing or attempting to elude a police officer—rather, the court
was discussing the defendant's right to an unanimity instruction on the obstruction of
official duty charge. See Castleberry, 301 Kan. at 185-87. Even if Kelly were correct in
his assertion that the State cannot use multiple instances of the same type of moving
violation to support the charge of fleeing or attempting to elude a police officer—here,
the State asserted five unique moving violations against Kelly—speeding, failure to use a
turn signal, passing in a no-passing zone, failure to stop at a stop signal, and failure to
stop at a stop sign. Reviewing the record in a light most favorable to the State, sufficient
evidence exists for a rational fact-finder to determine beyond a reasonable doubt that
Kelly committed at least five moving violations.
II. Kelly's conviction for fleeing or attempting to elude a police officer does not
violate K.S.A. 2020 Supp. 21-5110(c).
Kelly also requests this court reverse his Kansas conviction for fleeing or
attempting to elude a police officer because he contends it violates the statutory
prohibition against prosecution of a crime for which the defendant was already
prosecuted in a different jurisdiction. See K.S.A. 2020 Supp. 21-5110(c). This statutory
prohibition is similar to the constitutional prohibition against double jeopardy
prosecution. As a preliminary matter, Kelly relies solely on K.S.A. 2020 Supp. 21-
5110(c) and not on federal or state constitutional protections against double jeopardy and
argues that his Kansas conviction was prohibited because he had already been convicted
in Missouri for resisting arrest.
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This court exercises unlimited review over issues of statutory interpretation. State
v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). Kansas law prohibits the State from
prosecuting a defendant if the defendant was "formerly prosecuted" in another state "for
the same conduct" as the Kansas prosecution. K.S.A. 2020 Supp. 21-5110(c)(1) provides
that
"[a] prosecution is barred if the defendant was formerly prosecuted in a district court of
the United States or in a state court of general jurisdiction of another state . . . for a crime
which is within the concurrent jurisdiction of this state, if such former prosecution:
(1) [r]esulted in either a conviction or an acquittal, and the subsequent
prosecution is for the same conduct, unless each prosecution requires proof
of a fact not required in the other prosecution . . . ."
K.S.A. 2020 Supp. 21-5110(c) took effect on July 1, 2011. Prior to that,
substantially the same statute was codified under K.S.A. 21-3108(3)(a), which
read:
"[a] prosecution is barred if the defendant was formerly prosecuted in a district court of
the United States or in a court of general jurisdiction of a sister state . . . for a crime
which is within the concurrent jurisdiction of this state, if such former prosecution:
(a) [r]esulted in either a conviction or an acquittal, and the subsequent
prosecution is for the same conduct, unless each prosecution requires proof
of a fact not required in the other prosecution . . . ."
The only difference between the former statute in K.S.A. 21-3108(3)(a) and the
current language in K.S.A. 2020 Supp. 21-5110(c)(1) is that the previous language
barred prosecution when a defendant was formerly prosecuted "in a court of
general jurisdiction of a sister state," while the current language bars prosecution
when a defendant was formerly prosecuted "in a state court of general jurisdiction
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of another state." This slight variation in language bears no weight on this present
case and both versions of the statute prohibit the same types of prosecution.
The Kansas Supreme Court, in analyzing the substantially similar prior
statute under K.S.A. 21-3108(3)(a), explained that the statute requires the offenses
in each state to contain the same elements. See State v. Worth, 217 Kan. 393, 398,
537 P.2d 191 (1975) (analyzing whether a defendant's prior, out-of-state
conviction was for the same conduct as the Kansas prosecution). In Worth, the
defendant argued that statutory double jeopardy protections prohibited his Kansas
prosecution, and the court held that "[w]here one statute describing an offense
requires proof of a fact which another statute does not, then the offenses are not
the same, and a conviction or acquittal under one does not bar prosecution under
the other on the ground of double jeopardy." 217 Kan. at 398.
Kelly's Kansas conviction did not require proof of the same elements as his
Missouri conviction, and thus his claim is without legal support. Kelly was convicted in
Missouri under Mo. Rev. Stat. § 575.150, which provides:
"1. A person commits the offense of resisting or interfering with arrest, detention,
or stop if he or she knows or reasonably should know that a law enforcement officer is
making an arrest or attempting to lawfully detain or stop an individual or vehicle, and for
the purpose of preventing the officer from effecting the arrest, stop or detention, he or
she:
(1) [r]esists the arrest, stop or detention of such person by using or threatening
the use of violence of physical force or by fleeing from such officer . . . .
....
"3. A person is presumed to be fleeing a vehicle stop if he or she continues to
operate a motor vehicle after he or she has seen or should have seen clearly visible
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emergency lights or has heard or should have heard an audible signal emanating from the
law enforcement vehicle pursuing him or her."
The statute underlying Kelly's Kansas conviction for fleeing or attempting to elude a
police officer provides that it shall be a level 9 person felony for:
"(b) Any driver of a motor vehicle who willfully fails or refuses to bring such
driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police
vehicle . . . when given visual or audible signal to bring the vehicle to a stop, and who:
....
(E) commits five or more moving violations." K.S.A. 2018 Supp. 8-
1568(b)(1)(E).
Kelly argues that the elements supporting his Missouri conviction are "strikingly
similar" to those required for the Kansas conviction—and therefore his prosecution for
fleeing or attempting to elude a police officer in Kansas should have been barred by
K.S.A. 2020 Supp. 21-5110(c). He analogizes this issue to State v. Henwood, 243 Kan.
326, 756 P. 2d 1087 (1988), where the Kansas Supreme Court held that venue cannot be
used to constitute a "separate element" under the same-elements test of double jeopardy.
In that case, the court rejected the State's argument that the sole difference between the
defendant's convictions for receiving stolen property in Missouri and theft in Kansas was
that the theft conviction required proof the theft occurred "within the State of Kansas."
243 Kan. at 329-30. However—unlike in Henwood—Kelly's convictions in Kansas and
Missouri each required proof of an element not necessary to prove the other—completely
separate from any venue requirements.
Kelly's Kansas conviction required the State to prove that Kelly committed at least
five moving violations during his flight from police—an element not required to support
his Missouri convictions. See K.S.A. 2018 Supp. 8-1568(b)(1)(E); Mo. Rev. Stat.
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§ 575.150. Additionally, Kelly's Missouri conviction required the State to prove that
Kelly's failure to stop was "for the purpose of preventing the officer from effecting the
arrest, stop or detention," an intent element not required for the Kansas conviction. Mo.
Rev. Stat. § 575.150; K.S.A. 2018 Supp. 8-1568(b)(1)(E). Moreover, K.S.A. 2020 Supp.
21-5110(c) requires concurrent jurisdiction exist between the two jurisdictions that
brought the charges in question—something notably absent from Kelly's case. See State
v. Russell, 229 Kan. 124, 622 P.2d 658 (1981) (finding that a defendant convicted of
driving under the influence in both Kansas and Missouri could not benefit from the
protection of K.S.A. 21-3108(3)(a) because the defendant committed two separate
crimes, and neither Kansas nor Missouri would possess concurrent jurisdiction over the
crime occurring in the other state). Kelly's conviction for fleeing or attempting to elude a
police officer in Kansas is not for "the same conduct" as his conviction for resisting arrest
in Missouri, and thus does not violate K.S.A. 2020 Supp. 21-5110(c).
III. The record does not demonstrate whether Kelly's underlying criminal threat
conviction is constitutional.
Kelly also contends that his conviction for criminal possession of a firearm by a
convicted felon based on his underlying felony criminal threat conviction is illegal.
Specifically, he asserts that the record does not identify if his criminal threat conviction
was based on the "reckless disregard" form of criminal threat which has been found
unconstitutional. See State v. Boettger, 310 Kan. 800, 450 P.3d 805 (2019) (holding that
the criminal threat statute that permits conviction for "reckless disregard" is
unconstitutional). Kelly argues he is entitled to a remand for determination of whether his
conviction for criminal threat is unconstitutional, and if so then his conviction for
criminal possession of a firearm by a convicted felon should be reversed. This appears to
be an issue of first impression for this court. Before addressing the merits of Kelly's
argument, this court must address the State's prefatory contention regarding its
jurisdiction.
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1. Kelly's stipulation to his prior felony conviction and failure to object below do
not preclude his appeal.
The State first argues that this court lacks jurisdiction to review Kelly's claims
because he stipulated to his prior felony conviction and did not raise the issue below.
However, as the Kansas Supreme Court has held—a criminal defendant "may seek and
obtain the benefit of a change in the law during the pendency of a direct appeal." State v.
Williams, 311 Kan. 88, 95, 456 P.3d 540 (2020) (quoting State v. Murdock, 309 Kan.
585, 591-92, 439 P.3d 307 [2019]).
As Kelly notes, he only stipulated to his criminal threat conviction in the context
of the existence of a felony conviction on his record. Outside the presence of the jury, the
district court asked Kelly if he wanted to stipulate that he had a prior felony. After
clarifying he was not stipulating to every element of his criminal possession charge, but
solely to the fact that he had a prior felony conviction, Kelly told the court "Oh. Yeah, I
stipulate to that." The argument Kelly asserts now is essentially one of an error in
classifying that felony as valid for use as an underlying felony to support his conviction
for criminal possession of a firearm by a convicted felon.
The State asserts that because Boettger had been decided at the time of Kelly's
trial, he had an obligation to object to the use of his criminal threat conviction at trial or
sentencing. While the Kansas Supreme Court decided Boettger in October 2019, it stayed
the mandate while the State sought certification from the United States Supreme Court,
and the mandate was not issued until June 23, 2020. Kelly was sentenced in February
2020, before the mandate in Boettger had issued. Therefore, Kelly's current claim that his
conviction for criminal threat may be illegal under Boettger, was not ripe at the time of
his trial or sentencing in this case. However, Kelly is entitled to the benefit of Boettger on
appeal because he filed this appeal in February 2020, and his direct appeal was pending
when the Kansas Supreme Court issued the Boettger mandate—and "a party may seek
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and obtain the benefit of a change in the law during the pendency of a direct appeal."
State v. Broxton, 311 Kan. 357, 369, 461 P.3d 54 (2020) (quoting Murdock, 309 Kan. at
591-92.) Because the mandate had not issued in Boettger—and thus the law changed after
his sentencing—Kelly was not required to raise this argument at trial or sentencing. This
court has jurisdiction to review Kelly's claim based on a change in law while his appeal
was pending.
2. This court cannot determine whether Kelly was convicted of intentional or
reckless criminal threat.
Having determined it has jurisdiction, this court now turns to the merits of Kelly's
claim. Kelly asserts that the State relied on his potentially unconstitutional criminal threat
conviction to sustain his conviction for criminal possession of a firearm by a convicted
felon, and thus his resulting sentence is erroneous. Kelly frames the issue as a claim of an
illegal sentence—but concedes that it is not a typical claim for illegal sentence. Rather,
Kelly's claim is that while his appeal was pending the law changed making the criminal
threat conviction, which the State used to support his conviction for criminal possession
of a firearm by a convicted felon, partially unconstitutional. Under Kelly's argument, the
criminal threat conviction could not be used to support the present charge of criminal
possession of a firearm unless the State proved the criminal threat conviction was
constitutional. Although Kelly's logic is sound, the application of Boettger under these
circumstances appears to be a matter of first impression for this court, and although
similar to a claim for illegal sentence, it is more akin to that of an erroneous sentence. See
e.g., Williams, 311 Kan. at 98-99 (finding the Kansas Supreme Court's decision in State
v. Wetrich, 307 Kan. 552, 412 P.3d 984 [2018], issued while the defendant's direct appeal
was pending, required a prior out-of-state offense to be reclassified as nonperson);
Broxton, 311 Kan. at 369-70 (vacating a sentence and remanding for resentencing
consistent with a change in law).
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A sentence is illegal when: (1) it is imposed by a court without jurisdiction; (2) it
does not conform to the applicable statutory provisions, either in character or the term of
punishment; or (3) it is ambiguous about the time and manner in which it is to be served.
K.S.A. 2020 Supp. 22-3504(c)(1); State v. Hambright, 310 Kan. 408, 411, 447 P.3d 972(2019). Kelly claims his sentence is illegal because it does not conform to K.S.A. 2020
Supp. 21-6810(d)(9), which prohibits a district court from including any prior conviction
in an offender's criminal history that has been declared unconstitutional. However, as in
Williams and Broxton, Kelly's sentence was legal at the time of sentencing but a change
in the law during the pendency of Kelly's appeal requires this court to determine if Kelly's
sentence is erroneous.
Kelly was convicted of criminal possession of a firearm by a convicted felon in
violation of K.S.A. 2018 Supp. 21-6304(a)(3) which provides that
"(a) Criminal possession of a weapon by a convicted felon is possession of any weapon
by a person who:
....
(3) within the preceding 10 years, has been convicted of a:
(A) Felony under K.S.A. 2013 Supp. 21-5402, 21-5403, 21-5404, 21-
5405, 21-5408, subsection (b) or (d) of 21-5412, subsection (b) or (d)
of 21-5413, subsection (a) of 21-5415, subsection (b) of 21-5420, 21-
5503, subsection (b) of 21-5504, subsection (b) of 21-5505,
and subsection (b) of 21-5807, and amendments thereto; article 57 of
chapter 21 of the Kansas Statutes Annotated, and amendments thereto;
K.S.A. 21-3401, 21-3402, 21-3403, 21-3404, 21-3410, 21-3411, 21-
3414, 21-3415, 21-3419, 21-3420, 21-3421, 21-3427, 21-3442, 21-
3502, 21-3506, 21-3518, 21-3716, 65-4127a, 65-4127b, 65-
4159 through 65-4165 or 65-7006, prior to their repeal; or K.S.A. 2013
Supp. 21-5301, 21-5302 or 21-5303, and amendment thereto, of any such
felony; or a crime under a law of another jurisdiction which is
substantially the same as such felony, has been released from
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imprisonment for such felony, or was adjudicated as a juvenile offender
because of the commission of an act which if done by an adult would
constitute the commission of such felony, was not found to have been in
possession of a firearm at the time of the commission of the crime, and
has not had the conviction of such crime expunged or been pardoned for
such crime. The provisions of subsection (j)(2) of K.S.A. 2013 Supp. 21-
6615, and amendments thereto, shall not apply to an individual who has
had a conviction under this paragraph expunged . . . ."
At sentencing, the State acknowledged that Kelly's prior conviction for felony
criminal threat "was used as the underlying charge for the convicted felon in possession
of a firearm" in the present case. Additionally, at a pretrial conference, when discussing
whether Kelly would stipulate to the existence of a prior felony the court explained to
Kelly that "the gun charge that they have filed against you, possession of a firearm by a
convicted felon, one of the elements that the State would have to prove during the trial is
that you are a convicted felon." The court further explained, "You're stipulating that you
have a prior felony conviction," and "[y]ou understand by making that stipulation, you're
giving up your right to have the jury decide that issue?" Kelly replied, "Correct." At the
time of his trial and sentencing, prior to the mandate issuing in Boettger, Kelly's criminal
threat conviction was properly used to support his later conviction for criminal possession
of a firearm by a convicted felon. See K.S.A. 2018 Supp. 21-6304(a)(3)(A) (including
criminal threat convictions under K.S.A. 2018 Supp. 21-5415(a) as one of the felonies
supporting and underlying a subsequent charge for criminal possession of a firearm by a
convicted felon).
In Boettger, the Kansas Supreme Court declared that the reckless disregard
criminal threat provision of K.S.A. 2018 Supp. 21-5415(a)(1), the very statute relied
upon to support Kelly's conviction for criminal possession of a firearm by a convicted
felon, was unconstitutionally overbroad. 310 Kan. at 819. Notably, Kelly was convicted
for criminal threat under K.S.A. 2013 Supp. 21-5415(a)(1), which uses the same
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language as the 2018 version invalidated by Boettger. Compare K.S.A. 2018 Supp. 21-
5415(a)(1) with K.S.A. 2013 Supp. 21-5415(a)(1). If Kelly's criminal threat conviction is
based solely on the unconstitutional reckless disregard provision of the criminal threat
statute, its use as an underlying felony supporting the charge for criminal possession of a
firearm by a convicted felon is erroneous.
The State contends that the record additions of Kelly's 2013 criminal threat
complaint, his plea journal entry, and his journal entry of judgment suffice to show that
Kelly's criminal threat conviction was not based on the unconstitutional reckless
disregard provision of the criminal threat statute. The Kansas Supreme Court has held
that when a defendant is charged under an alternative means theory of criminal threat that
asserts both the intentional and the unconstitutional "reckless disregard" provisions of the
statute—there must be sufficient basis for the court to discern beyond a reasonable doubt
that the defendant acted intentionally. State v. Johnson, 310 Kan. 835, 843, 450 P.3d 790(2019). Kelly's criminal threat complaint shows the State charged him under an
alternative means theory of criminal threat—alleging that he "did unlawfully and
feloniously communicate a threat to commit violence, with the intent to place another in
fear . . . or with reckless disregard of the risk of causing such fear." (Emphasis added.)
Kelly entered a plea of nolo contendere to his criminal threat charge, but the plea journal
entry does not specify whether he pled to intentional or reckless disregard criminal
threat—or both. Kelly's journal entry of judgment also does not clarify the issue, showing
only that he was convicted of "criminal threat."
Based on the record on appeal, Kelly did not admit or stipulate that his conviction
for criminal threat was for the intentional, and still constitutional, form of the crime.
Additionally, the record on appeal does not demonstrate beyond a reasonable doubt
whether Kelly's criminal threat conviction was for an intentional or reckless criminal
threat. As a result, it is impossible to know whether Kelly's current conviction for
criminal possession of a firearm by a convicted felon was predicated on a prior
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conviction that was deemed unconstitutional during the pendency of his appeal. See
Boettger, 301 Kan. at 822. Although Kelly's claim is not one for an illegal sentence, the
claimed error is akin to the allegedly improper inclusion of a conviction in a criminal
history score because that allegedly improper conviction was used to support a
subsequent conviction. When the record on appeal lacks substantial competent evidence
to support a district court's inclusion of a prior conviction in a defendant's criminal
history score, this court must remand to allow the district court the opportunity to
determine the correct criminal history. See State v. Ewing, 310 Kan. 348, 359-60, 446
P.3d 463 (2019); State v. Cardillo, No. 120,606, 2021 WL 1149145, at *3 (Kan. App.
2021) (unpublished opinion). This court sees no reason for a different result when the
claimed error is the inclusion of a potentially unconstitutional conviction in a criminal
history that was used to support a subsequent conviction for criminal possession of a
firearm by a convicted felon.
This court must vacate Kelly's sentence for criminal possession of a firearm by a
convicted felon and remand to the district court to determine whether Kelly's underlying
conviction for criminal threat is constitutional—and thus whether it could be used to
support his conviction for criminal possession of a firearm by a convicted felon. If the
district court cannot find sufficient evidence that Kelly's criminal threat conviction was
for intentional criminal threat, then his conviction for criminal possession of a firearm by
a convicted felon cannot be sustained.
CONCLUSION
Kelly's challenges to his fleeing or attempting to elude a police officer conviction
hold no merit, and that conviction is affirmed. But this court cannot determine whether
the underlying felony conviction used to support Kelly's conviction for criminal
possession of a firearm by a convicted felon remains constitutional post-Boettger. As
such, Kelly's sentence for criminal possession of a firearm by a convicted felon is
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vacated, and this case is remanded to the district court with directions consistent with this
opinion.
Affirmed in part, sentence vacated in part, and case remanded with directions.
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