State v. Rodriguez
| Decision Date | 24 March 2017 |
| Docket Number | No. 110,346,110,346 |
| Citation | 305 Kan. 1139,390 P.3d 903 |
| Parties | STATE of Kansas, Appellee, v. Tiofilo RODRIGUEZ, Appellant. |
| Court | Kansas Supreme Court |
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Jessica E. Akers, county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the briefs for appellee.
Tiofilo Rodriguez petitions this court for review of the Court of Appeals' decision in State v. Rodriguez , No. 110346, 2015 WL 715528 (Kan. App. 2015) (unpublished opinion), which affirmed his conviction and sentence for aggravated kidnapping and related charges. We granted the petition in part, designating two issues for review, to-wit: (1) whether the information charging Rodriguez with aggravated kidnapping was so defective as to warrant reversal; and (2) whether two prior Colorado misdemeanor convictions were improperly classified and aggregated with another misdemeanor conviction to be scored as a person felony for criminal history purposes. Under the paradigm for analyzing defective charging instrument claims raised for the first time on appeal recently established in State v. Dunn , 304 Kan. 773, 375 P.3d 332 (2016), the claimed defects in charging Rodriguez with aggravated kidnapping do not require reversal of that conviction. But the State failed to establish that the Colorado convictions qualified for aggregation in this state. Accordingly, Rodriguez' convictions are affirmed, but his sentence is vacated and the case is remanded for resentencing under the appropriate criminal history score.
On December 29, 2011, Rodriguez lived with his girlfriend, Alicia Apodaca, and her two sons, J.R. and S.R., in Alicia's apartment in Ulysses. At the time, J.R. was age 14 and S.R. was 13 years old. On that date, Alicia decided to sleep in her sons' bedroom, after smelling liquor on Rodriguez' breath. But Rodriguez entered the boys' bedroom and, after watching television for a time, suddenly shut the door, telling Alicia and the boys that they would not be getting out of the bedroom ever again. He battered Alicia for about 2 hours, punching and kicking her in the face, legs, head, and back, as well as pulling her hair. Rodriguez repeatedly threatened that Alicia would not live through the night and that her sons were going to watch her die. When the boys tried to help their mother, Rodriguez hit and shoved them. He tied the boys' ankles with shoelaces.
When Alicia tried to escape, Rodriguez threw her against the wall with such force that the impact broke the sheetrock. Alicia required medical attention at the hospital and would later relate that her vision was blurry for 2 weeks.
Although Rodriguez broke one cellphone, the three victims managed to call 911 during the ordeal. Ultimately a Grant County Sheriff's deputy and Ulysses police officer arrived and started to force their way in when they heard screaming and glass breaking. Deputy Johnathon Smith began to kick in a door, before Rodriguez opened the door and let the officers in. Officer Julie Hart found Alicia, J.R., and S.R. barricaded in the bedroom. The officer cut the shoelaces from S.R.'s ankles and observed that his hands were bloody. He had broken the glass window to get the officers' attention when he heard them arrive.
While Smith was leading Rodriguez out of the apartment in handcuffs, Rodriguez told Alicia, J.R., and S.R. that when he got out of jail he would come back to "get them" and finish what he started. He bragged that he could get out of the handcuffs at any time.
Officer Hart interviewed the victims at their home and later at the hospital and took pictures of Alicia's injuries. The boys' testimony at trial was fairly consistent with Officer Hart's account and their testimony at the preliminary hearing, albeit there were some discrepancies. J.R. and S.R. both testified at the preliminary hearing that Rodriguez had not threatened their lives, but at the jury trial, they both said that Rodriguez had threatened them. They explained the difference by saying they were nervous at the preliminary hearing because it was the first time they had seen Rodriguez since the ordeal. Alicia's trial testimony was consistent with her prior statements, except that she added at trial that all three victims had vomited into a trash can during the violence.
Rodriguez testified on his own behalf. He admitted to hitting Alicia three times. He said they were arguing because Alicia was calling or texting someone else and she had asked him to move out—first within 2 weeks, but then said to be out within 6 days. Rodriguez denied all other accusations, specifically stating that he had not hit Alicia more than three times, had not kicked her, and had not pushed her against the wall. He claimed the hole in the sheetrock occurred after he left the room to open the door for the police. He also denied hitting S.R. and J.R., denied threatening them, and denied tying them up. He said he never prevented anyone from leaving the bedroom.
Rodriguez called three witnesses—cousins with whom he spent the evening before returning to the apartment on the night of the incident. The first two witnesses, Herminia Parada and Nancy Guerrero, said Rodriguez was at their houses from 2:30 to 7:30 p.m. on the 28th. They also said he was only fluent in English, not Spanish, presumably to refute the shouting in Spanish that can be heard on the recorded 911 calls. Nevertheless, a female voice can be heard on the recording pleading, "Tio, no."
The third witness, Sisto Rodriguez, said he and Rodriguez drank together that evening until about 11:30 but that Rodriguez did not seem drunk when he left, despite the two having split a 12–pack of beer. Sisto also said Rodriguez was not fluent in Spanish.
The jury found Rodriguez guilty of aggravated kidnapping of Alicia, kidnapping of J.R., kidnapping of S.R., aggravated battery of Alicia, criminal threat of Alicia, criminal threat of J.R., criminal threat of S.R., battery of J.R., and battery of S.R. The jury found Rodriguez not guilty of aggravated assault of Alicia and criminal damage to property.
The prior conviction worksheet on Rodriguez' presentence investigation report reflected two Colorado misdemeanor convictions for third-degree assault, pursuant to Colo. Rev. Stat. § 18–3–204, and a misdemeanor battery conviction from the municipal court in Ulysses. Aggregating the three misdemeanors to score as one person felony elevated Rodriguez' criminal history score from D to B. Rodriguez, 2015 WL 715528, at *13.
At the sentencing hearing, the defense called Parada and Guerrero to testify to their cousin's good character and to cast aspersions on the victims' motives. Rodriguez took the stand to ask the court to take into consideration the various good acts he had performed, particularly his service in the Marines around the time of the first Iraq war. During his allocution, Rodriguez made the following statement, which the sentencing court apparently interpreted as a stipulation to the criminal history score, to-wit:
Using a criminal history score of B, selecting the aggravated grid box sentence for each of the felonies, and imposing the sentences consecutively, the court sentenced Rodriguez to a controlling prison term of 774 months, or 64 ½ years. Rodriguez timely appealed, and a divided panel of the Court of Appeals affirmed his conviction. The concurring and dissenting judge, Senior Judge Edward Larson, challenged the statutory authority to aggregate the Colorado misdemeanors and would have vacated Rodriguez' sentence and remanded to resentence with a criminal history of D.
Rodriguez sought our review on five issues, but we granted review on only the two issues described above relating to a defective charging instrument and the aggregation of out-of-state misdemeanor convictions.
For the first time on appeal, Rodriguez contends that the information in his case, even as amended, failed to charge him with the crime of aggravated kidnapping against Alicia. Aggravated kidnapping incorporates the elements of simple kidnapping, which, in turn, requires that the kidnapper confine the victim with the intent to hold the person for one of four statutorily specified purposes. K.S.A. 2011 Supp. 21–5408. The specific intent set forth in the jury instructions with respect to the kidnapping of Alicia was the one described in K.S.A. 2011 Supp. 21–5408(a)(3), which is "[t]o inflict bodily injury or to terrorize the victim or another."
But neither that specific intent element nor any other was included in the charging document. Instead, the information simply alleged that Rodriguez did "take or confine any person, to wit: ALICIA APODACA, accomplished by force, threat, or deception, and bodily harm is inflicted upon the person kidnapped." The last part of the charge—about bodily harm being inflicted—was necessary in this case because kidnapping is elevated to aggravated kidnapping "when bodily harm is inflicted upon the person kidnapped." K.S.A. 2011 Supp. 21–5408(b).
Rodriguez asserts that, because the charging document omitted the specific intent element, it failed to charge kidnapping. Consequently, if the information did not charge kidnapping, it could not charge aggravated kidnapping, but rather only charged the crime of criminal restraint. He asks this court to overrule State v. Hall , 246 Kan. 728, 793 P.2d 737 (1990), with respect to the analysis employed on defective complaint claims raised for the first time on appeal, and find that the omitted element...
To continue reading
Request your trial