STATE v. BATEAST (2018)

MEMORANDUM OPINION

Damian Migel Bateast appeals his two convictions and sentence for “distribution or possession with intent to distribute methamphetamine.” On appeal, he argues that this court should reverse his convictions based on two jury instruction errors or, alternatively, cumulative error. He also argues that the trial court wrongly classified his prior Mississippi convictions for “domestic violence simple assault” and “simple assault” as person felonies for criminal history purposes. We determine that Bateast's criminal history argument has merit. We vacate the sentence imposed below with directions to classify the Mississippi misdemeanor convictions as nonperson crimes. We further determine that Bateast fails to establish that the giving or the failure to give any jury instruction resulted in clear error. As a result, we affirm the convictions, vacate Bateast's sentence, and remand with directions.

The State charged Bateast with two counts of “distribution or possession of methamphetamine with intent to distribute” in violation of K.S.A. 2015 Supp. 21-5705(a)(1), each severity level 4 drug felonies. Bateast's charges arose after a confidential informant (CI) told the police that he bought methamphetamine from Bateast on November 3, 2015, and on November 4, 2015, during controlled buys.

Bateast took his case to trial on April 5 and 6, 2017. During the trial, the State presented the testimony of the CI, as well as a few police officers involved in Bateast's case—Detective Dustin McDaniels, Detective J.J. Karlinger, and Sergeant Detective Adam Harrison. Bateast presented no evidence on his own behalf.

J.S. testified that he volunteered to become a CI for the Pittsburg Police Department in exchange for money. During his work for the police, he made $300. J.S. admitted that the police paid him only if he successfully bought drugs during the controlled buys. Although he was on bond for a possession case while acting as a CI, J.S. testified that the police did not promise to help him with his criminal case by participating in the controlled buys.

Concerning the control buys with Bateast, J.S. explained that on November 3, 2015, he set up a buy with Bateast through Facebook Messenger. They were going to meet in the Walmart parking lot at 5 p.m. For each of his controlled buys, after J.S. contacted a drug dealer, he would let police know about his upcoming purchase. Thus, several minutes before 5 p.m., he met Detective McDaniels and Detective Karlinger at a prearranged location where Detective Karlinger strip searched him. J.S. testified that Detective McDaniels and Detective Karlinger then drove him to the Dillon's parking lot. At the Dillon's parking lot, Detective McDaniels provided him with money and attached an audio recording device to his body.

Next, J.S. explained that he got out of the car and started walking towards the Walmart parking lot. On the way, however, he received a text message that Bateast had changed the location of the buy to the Cato parking lot. J.S. explained that he walked back to Detective McDaniels and Detective Karlinger's car in the Dillon's parking lot; they then drove him closer to the Cato parking lot. J.S. explained that when he got out of the car, he started walking towards a red SUV that he recognized as Bateast's car. He testified that when he reached the red SUV, Bateast was in the driver's seat. He explained that as Bateast sat in the driver's seat and he stood outside the driver's side door, he bought about a gram of methamphetamine from Bateast for $100. He testified that the entire transaction occurred through the crack of the driver's side door.

J.S. testified that once he bought the methamphetamine, he immediately walked back to Detective McDaniels and Detective Karlinger's car. He testified that when he arrived back at the car, he turned over the methamphetamine that he had just bought from Bateast. Detective Karlinger then performed another strip search, in which he found nothing. Lab testing established that the substance J.S. bought contained .41 grams of methamphetamine.

Then, J.S. testified about the November 4, 2015 controlled buy. He explained that he called Bateast and asked if he could buy more drugs. During that phone call, J.S. and Bateast agreed that he would buy a gram of methamphetamine for $100. They agreed to meet in the Walmart parking lot. According to J.S., he met Detective McDaniels and Detective Karlinger in the same prearranged location as the day before. Also, the detectives strip searched him, provided him with money, and connected him to an audio recording device like the day before.

J.S. testified that Detective McDaniels and Detective Karlinger then drove him to the Dillon's parking lot where he got out of the car and walked towards the Walmart parking lot. He testified that once in the Walmart parking lot, he met Bateast at the back of his red SUV where he gave Bateast $100 and Bateast gave him methamphetamine. He asserted that after this, he immediately walked back to Detective McDaniels and Detective Karlinger's car where he provided the detectives with the methamphetamine that he just bought from Bateast. He explained that a detective then strip searched him again, and the detective found nothing. Lab testing established that the substance J.S. bought contained .30 grams of methamphetamine.

The State admitted the audio recordings of the November 3, 2015 and the November 4, 2015 controlled buys into evidence. Both recordings document the time just before J.S. leaves Detective McDaniels and Detective Karlinger's car to conduct the controlled buys to the time J.S. returned to Detective McDaniels and Detective Karlinger's car after completing the controlled buys. Both recordings include conversations between two men.

In the November 3, 2015 recording, a man states that he is giving another man a “hundo [sic].” A second man responds, “Take 20.” The first man responds that the man should take the full $100 to buy furniture. The second man then says, “All right.” During his testimony, J.S. identified the first man's voice on the recording as himself and the second man's voice on the recording as Bateast's voice. In the November 4, 2015 recording, a man asks another man if he has “a half” for him. This man questions whether he should stay away from this first man because he has heard bad things about him from another person. During his testimony, J.S. identified the first man's voice on the recording as himself and the other man's voice on the recording as Bateast's voice.

Detective McDaniels' and Detective Karlinger's testimony confirmed J.S.'s testimony. Detective Karlinger testified that on both November 3, 2015, and November 4, 2015, he strip searched J.S. before the controlled buys and found nothing on J.S.'s body. Detective McDaniels explained how on both dates, he gave J.S. $100 and connected him to the audio recording device. Detective McDaniels explained that the audio recording device not only recorded audio, but also transmitted it live. As a result, he and Detective Karlinger could hear J.S.'s conversations as they were occurring. Detective McDaniels testified that for both controlled buys, J.S. did not return with the $100, but he did return with methamphetamine. Detective Karlinger testified that he strip searched J.S. after the controlled buys, and those strip searches also revealed nothing.

For the November 3, 2015 controlled buy, although Detective McDaniels and Detective Karlinger testified that they saw Bateast's red SUV in the Cato parking lot, they did not see Bateast. They also could not see J.S. approach Bateast's SUV. Yet, Sergeant Detective Harrison was in his car across the street from Bateast's parked red SUV. Sergeant Harrison testified that he watched Bateast get into his red SUV in front of an Aaron's Rent-to-Own and drive to the Cato parking lot where J.S. approached the driver's side door shortly afterwards.

For the November 4, 2015 controlled buy, although Detective McDaniels could not see Bateast, he saw J.S. walk up to Bateast's red SUV. Detective McDaniels explained that he simply could not see Bateast because of the angle of his car and the red SUV. Detective Karlinger testified that he was not paying attention because he was driving. Still, Sergeant Detective Harrison testified that he saw J.S. walking towards Bateast's red SUV in the Walmart parking lot and also saw Bateast standing at the back of his SUV. He explained that he watched J.S. “approach,” but he could “definitively say [he] saw a transaction.”

The jury convicted Bateast of both counts of distribution of methamphetamine. The trial court sentenced Bateast to a controlling term of 64 months' imprisonment followed by 24 months' postrelease supervision. Bateast objected to his criminal history score of A, which was based partly on the conversion of prior misdemeanors he committed in Mississippi into a person felony for criminal history purposes.

Did the Trial Court Err in Instructing the Jury?

On appeal, Bateast argues that the trial court erred in instructing the jury in two ways. First, he argues that the trial court lowered the State's burden of proof by providing errant instructions on the requisite mental state he needed to commit “distribution or possession with intent to distribute methamphetamine” under K.S.A. 2017 Supp. 21-5705(a)(1). Second, Bateast argues that the trial court erred by not providing a cautionary instruction on informant testimony because the State's case largely hinged on J.S.'s testimony. Bateast recognizes (1) that he did not object to the wording of the distribution instruction below and (2) that he did not request a cautionary instruction on informants. He asserts that this court should grant him a new trial because the trial court's failures affected the jury's verdicts.

The State responds that the distribution instructions were legally and factually appropriate, meaning that the trial court did not lower the State's burden of proof. Regarding the cautionary instruction on informants, the State asserts that the instruction was not factually appropriate. Moreover, the State argues that even if the instruction was appropriate, the trial court's failure to give the instruction on informants was not clearly erroneous.

 Standard of review

In State v. Louis, 305 Kan. 453, 457, 384 P.3d 1 (2016), our Supreme Court outlined the standard of review for jury instruction challenges as follows:

“When analyzing jury instruction issues, an appellate court follows a three-step process by: (1) Determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits to determine whether error occurred; and (3) assessing whether the error requires reversal. State v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d 877 (2015). Whether a party has preserved a jury instruction issue affects the reversibility inquiry at the third step. 302 Kan. at 752; see also K.S.A. 2015 Supp. 22-3414(3) (‘No party may assign as error the giving or failure to give an instruction ․ unless the party objects thereto before the jury retires to consider its verdict ․ unless the instruction or the failure to give an instruction is clearly erroneous.’).”

Under the second step, appellate courts must consider whether the instruction was legally and factually appropriate. While making this consideration, an appellate court exercises unlimited review. Louis, 305 Kan. at 457. Under the third step of this court's review, when a defendant fails to object to the giving or failure to give an instruction, an appellate court will not reverse unless the defendant can establish clear error. To establish clear error, the defendant must firmly convince this court that the error affected the jury's verdict. 305 Kan. at 462.

 Distribution or possession with intent to distribute instructions

The trial court provided the jury the following instructions on distribution and possession with intent to distribute methamphetamine:

“Instruction No. 5

“The State must prove that the defendant committed the crimes of distribution or possession with the intent to distribute methamphetamine either intentionally or knowingly.

“A defendant acts intentionally when it is the defendant's desire or conscious objective to do the act complained about by the State or cause the result complained about by the State.

“A defendant acts knowingly when the defendant is aware of the nature of his conduct that the State complains about or the circumstances in which he was acting or that his conduct was reasonably certain to cause the result complained about by the State.”

“Instruction No. 6

“If the State has proved that the defendant acted intentionally, then the State has proved that the defendant acted knowingly.”

“Instruction No. 7

“The defendant is charged with unlawfully distributing or possessing with the intent to distribute a controlled substance. The defendant pleads not guilty.

“To establish this charge, each of the following claims must be proved:

“1. The defendant distributed or possessed methamphetamine.

“2. The quantity of methamphetamine distributed or possessed with intent to distribute was less than 1 gram.

“3. This act occurred on or about the 3rd day of November 2015, in Crawford County, Kansas.

“It is not a defense that the defendant was acting as an agent on behalf of any other party in a transaction involving a controlled substance, did not know the quantity of the controlled substance, or did not know the specific controlled substance involved.

“ ‘Distribute’ means the actual, constructive, or attempted transfer of an item from one person to another, whether or not there is an agency relationship between them. ‘Distribute’ includes sale, offer for sale, or any act that causes an item to be transferred from one person to another. ‘Distribute’ does not include acts of administering, dispensing, or prescribing a controlled substance as authorized by law.

“ ‘Possession’ means having joint or exclusive control over an item with knowledge of and the intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.” (Emphasis added.)

Jury Instruction No. 8 was identical to Jury Instruction No. 7 except that No. 8 stated that Bateast must have committed the act of distribution or possession with intent to distribute methamphetamine on or about November 4, 2015. Thus, our analysis about Instruction No. 7 below also applies to Instruction No. 8.

Next, Bateast's complaints on appeal about the preceding instructions are twofold. First, Bateast takes issue with element 1 in Instruction No. 7. Bateast asserts that the trial court lowered the State's burden of proof because the instruction errantly states that the jury could convict him if it believed that he “distributed or possessed methamphetamine” instead of it believing that he “distributed or possessed with intent to distribute methamphetamine.” Second, he asserts that the trial court lowered the State's burden of proof in Instruction No. 5 by stating that the jury could convict him if it believed that the State presented evidence that he committed the “crimes of distribution or possession with the intent to distribute methamphetamine either intentionally or knowingly.” (Emphasis added.) He argues that “knowingly” is the incorrect mental state.

The State counters that if one considers Instructions No. 5 and No. 7 as a whole, the instructions adequately inform the jury on the law. Furthermore, the State argues that “knowingly” was an appropriate mental state to instruct the jury on in Instruction No. 5 given that the definition of “possession” in Instruction No. 7 states that the defendant must possess an item “with knowledge” or “knowingly.”

Turning our attention to Bateast's first argument, when we view the instructions as a whole, we note that the trial court did not lower the State's burden of proof in Instruction No. 7 by telling the jury that it could convict Bateast if it believed that he “distributed or possessed methamphetamine.” When a defendant complains about the wording of a jury instruction, appellate courts must look at all the instructions as a whole “ ‘to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.’ [Citation omitted.]” State v. Hilt, 299 Kan. 176, 184-85, 322 P.3d 367 (2014).

Here, element 1 in Instruction No. 7 should have stated that the jury could not convict Bateast unless it believed he “distributed or possessed methamphetamine with intent to distribute.” See PIK Crim. 4th 57.020. Still, as noted by the State, the instructions provided the jury with the correct language many times. In fact, the instructions told the jury that Bateast must have possessed methamphetamine “with the intent to distribute” the methamphetamine in these places: (1) in the first sentence of Instruction No. 5; (2) in the first sentence of Instruction No. 7; and (3) in element 2 of Instruction No. 7. Thus, even though element 1 was not technically correct, when one considers the instructions as a whole, the instructions properly stated that law. In this regard, the instructions clearly informed the jury that it needed to believe that Bateast possessed methamphetamine with the intent to distribute methamphetamine. Therefore, Bateast's argument is unpersuasive.

Bateast's remaining argument is more complicated. A problem that neither party addresses is how the State charged Bateast. K.S.A. 2017 Supp. 21-5705(a) states that “[i]t shall be unlawful for any person to distribute or possess with the intent to distribute ․ controlled substances ․” The State charged Bateast with “intentionally or knowingly distribut[ing] or possess[ing] with intent to distribute methamphetamine ․” (Emphasis added.) As noted, the trial court provided the jury instructions that included the “distributed or possessed with intent to distribute” language. (Emphasis added.) Consequently, the jury could convict Bateast of violating K.S.A. 2017 Supp. 21-5705 under two different sets of factual circumstances: (1) if it believed he distributed methamphetamine; or (2) if it believed he possessed methamphetamine while also intending to distribute methamphetamine.

Bateast has never complained about the way the State charged him. Nor has he ever objected, alleging that he was charged and convicted under alternative means. By failing to make either of these objections, he has abandoned those arguments. See State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016) (holding that an issue not briefed is deemed waived and abandoned). Despite Bateast's abandonment, it is important to recognize that persons can violate K.S.A. 2017 Supp. 21-5705(a) in two distinct ways—by distributing controlled substances or by possessing controlled substances with the intent to distribute controlled substances. Because there are two distinct ways persons may violate K.S.A. 2017 Supp. 21-5705(a), there are different mental states associated with “distribution” and “possession with intent to distribute.” See State v. Cottrell, 53 Kan. App. 2d 425, 438, 390 P.3d 44 (2017) (holding that “[u]nlawful distribution of a controlled substance, as defined in K.S.A. 2015 Supp. 21-5705, does not indicate the mental state required for the crime.”); State v. Gibson, 30 Kan. App. 2d 937, 953, 52 P.3d 339 (2002) (holding that “possession with the intent to distribute is a crime which requires an act coupled with a specific intent”).

Nevertheless, Bateast's argument about the trial court lowering the State's burden of proof hinges solely on the “possession with intent to distribute” methamphetamine alternative. Bateast never argues that the trial court provided the wrong mental state instruction for the “distribution” alternative. Instead, he argues that the inclusion of the language “either intentionally or knowingly” at the end of Instruction No. 5 “did not clearly instruct the jury on the correct mental state for possession with intent to distribute.” Consequently, Bateast has abandoned any argument he may have had about the trial court lowering the State's burden of proof as to the distribution alternative. See Williams, 303 Kan. at 758.

 Instruction No. 5

As for Bateast's argument that Instruction No. 5 “did not clearly instruct the jury on the correct mental state for possession with intent to distribute,” Bateast's complaint has merit. Once more, the relevant part of Instruction No. 5 states: “The State must prove that the defendant committed the crimes of distribution or possession with the intent to distribute methamphetamine either intentionally or knowingly.” (Emphasis added.) As noted, this court has held that “possession with the intent to distribute is a crime which requires an act coupled with a specific intent.” Gibson, 30 Kan. App. 2d at 953. By definition, the act of possession requires a person to have “knowledge” of an item or “knowingly keep[ ] some item ․” K.S.A. 2017 Supp. 21-5701(q). Thus, when a defendant unlawfully possesses methamphetamine with the intent to distribute methamphetamine, the defendant must knowingly possess the methamphetamine and intend to distribute the methamphetamine. Even so, this means that the defendant must have both mental states to commit the crime, not an either or mental state.

As a result, not only is the wording of the instruction confusing, it is legally inappropriate. Yet, to be entitled to reversal of his convictions, Bateast must establish that but for the errant instructions, the jury would have found him not guilty. See State v. Williams, 295 Kan. 506, 517, 286 P.3d 195 (2012) (holding that the clearly erroneous test applied even when the defendant alleged that the court violated his constitutional rights by the giving of a jury instruction). Bateast fails to establish such a possibility existed.

To begin with, although Instruction No. 5 included the “either intentionally or knowingly” language, Instruction No. 7 more accurately stated the law. Again, this court must consider jury instructions as a whole, not in isolation. Hilt, 299 Kan. at 184-85. Instruction No. 7 told the jury that it could not convict Bateast unless he “possess[ed] with the intent to distribute a controlled substance,” “possessed methamphetamine,” and “possessed with intent to distribute [methamphetamine].” Instruction No. 7 explained to the jury that the act of possession required knowledge. Therefore, although the “either intentionally or knowingly” language in Instruction No. 5 was legally inappropriate, Instruction No. 7 helped mitigate the harmful effect of the errant language in Instruction No. 5.

Next, in his brief, Bateast makes a few arguments why he believes the evidence in his case was weak. According to Bateast, the weak evidence establishes that but for the errant wording of Instruction No. 5, the jury would have found him not guilty. First, Bateast alleges that the jury raised questions concerning the sufficiency of the evidence supporting his convictions. He points out that during deliberations, the jury asked two questions, which it submitted together. The jury's first question was as follows: “What happens if the jury can come to a unanimous decision on one charge but not on the other?” But the jury explicitly wrote that this question was a “hypothetical.” The jury's next question was whether the “audio from 11/3 [could] be applicable to the count on 11/4?” The jury explained that it was asking this question because it was confused about the application of Instruction No. 9—the instruction that states that the jury must consider “each crime charged against [Bateast as] separate and distinct offense[s].”

Thus, despite Bateast's arguments to the contrary, the jury's questions do not point to some sort of sufficiency of the evidence problem. Instead, the jury was just trying to better understand the instructions. Moreover, the short time the jury deliberated also undermines Bateast's argument that the jury had concerns about the sufficiency of the evidence. The jury began its deliberations on April 6, 2017, at 4:32 p.m. and reentered the courtroom with its verdict at 5:15 p.m. As a result, the jury asked its questions and found Bateast guilty of both counts of distribution or possession with intent to distribute in under 45 minutes. Simply put, the speed at which the jury found Bateast guilty does not support that it had concerns about insufficient evidence.

Bateast's remaining argument attacks the quality of the State's evidence at trial. He asserts that the jury could have concluded that he acted knowingly, instead of with the intent to distribute, because of the following evidence: (1) J.S. testified that on November 3, 2015, they only talked about a fee and small talk; (2) J.S. testified that on November 4, 2015, they only engaged in small talk; (3) J.S. was the only person who identified his voice on the audio recording; and (4) J.S. was the only person who saw him sell the methamphetamine both days.

The “small talk” that J.S. and Bateast engaged in on November 3, 2015, however, involved an exchange of $100. Although J.S. may have been out of the detectives' vision when (1) he walked behind a Starbucks and (2) he was at the driver's side door of Bateast's car, the detectives could always hear J.S. through the live audio. More importantly, because Bateast changed the location of the buy on November 3, J.S. could not have known he was going to walk behind the Starbucks, negating any argument that J.S. planted the methamphetamine behind the Starbucks. And after talking to Bateast, he returned to Detective McDaniels and Detective Karlinger's car, providing them with methamphetamine that he did not have before.

The “small talk” that J.S. and Bateast engaged in on November 4, 2015, involved Bateast questioning J.S. whether J.S. was trustworthy because Bateast had heard rumors that J.S. was not; eventually, J.S. asks for a “half.” Although none of the detectives could testify that they saw the transaction, J.S. was always in the sight of at least one detective. Additionally, when J.S. returned to Detective McDaniels and Detective Karlinger's car, he had methamphetamine he did not have before.

Moreover, regarding J.S. being the only person who identified Bateast's voice on the audio recording, Sergeant Detective Harrison testified that on November 3 and 4, 2015, he saw J.S. approach Bateast's red SUV. Sergeant Detective Harrison testified that he actually saw J.S. approach Bateast on November 4, 2015. Given that Sergeant Detective Harrison testified that he saw J.S. approach Bateast, in addition to J.S.'s testimony, there was strong evidence supporting that it was Bateast's voice on the audio recordings for both November 3 and 4, 2015.

Bateast's last argument involves J.S.'s allegedly inconsistent testimony about the methamphetamine he bought from Bateast on November 4, 2015. At trial, Detective Karlinger testified that on November 4, 2015, J.S. returned with a single baggie containing methamphetamine. But when the prosecutor showed J.S. this single baggie with methamphetamine in it, J.S. testified that this baggie was not the baggie that Bateast had given him on November 4, 2015. J.S. testified that Bateast had given him five baggies with the methamphetamine split between the baggies.

Later on, however, Detective McDaniels testified that J.S. was involved in several controlled buys on November 4, 2015, and one of those other controlled buys involved a purchase of five baggies. J.S. also conceded that he might have mixed up the different controlled buys he participated in on November 4, 2015, as it concerned the purchase of five baggies. Thus, although J.S. provided inconsistent testimony, Detective McDaniels, as well as J.S.'s amended testimony, provided a credible reason for the inconsistency.

Finally, in making his arguments, Bateast has ignored his trial defense. Bateast's defense at trial was that there were “inconsistencies” in the State's case. Bateast argued that J.S.'s testimony was not credible and implied J.S. set him up. He asserted that no evidence existed establishing that he committed the crime. He also suggested that other people sold J.S. the methamphetamine. Therefore, Bateast's defense did not hinge on whether he possessed methamphetamine with the intent to distribute it. Instead, it hinged on the jury believing that he had nothing to do with possessing and distributing the methamphetamine. As a result, another reason that Bateast fails to establish clear error is because his defense did not turn on what culpable mental state he possessed. Thus, Bateast cannot establish that the jury's verdicts would have been different but for the trial court's errant language in Instruction No. 5: that the jury could convict Bateast if he “possess[ed] with the intent to distribute methamphetamine either intentionally or knowingly.”

Consequently, the giving of Instruction No. 5 was not clearly erroneous.

Cautionary Instruction on Informants

Bateast asserts that the trial court erred by not providing the jury with the cautionary instruction on informants. PIK Crim. 4th 51.100. This instruction states: “You should consider with caution the testimony of an informant who, in exchange for benefits from the State, acts as an agent for the State in obtaining evidence against a defendant, if that testimony is not supported by other evidence.” Bateast argues that the instruction was both legally and factually appropriate. Moreover, he asserts that the failure to give the instruction was clearly erroneous.

In State v. Novotny, 252 Kan. 753, 851 P.2d 365 (1993), our Supreme Court held that when a defendant fails to request a cautionary instruction on informant testimony, and the informant's testimony was substantially corroborated, then “the absence of a cautionary instruction is not error and is not grounds for reversal of the conviction.” (Emphasis added.) 252 Kan. at 760. Bateast argues that this rule does not apply to him because nothing substantially corroborated J.S.'s testimony. Thus, according to Bateast, the trial court's failure to give the cautionary instruction was clearly erroneous.

Nevertheless, as addressed in the preceding section, the evidence at Bateast's trial substantially corroborated J.S.'s testimony. Indeed, our analysis in the preceding section about why the State's case against Bateast was strong applies equally to Bateast's current argument about the cautionary instruction on informants. In short, although J.S. was the only person who directly testified about Bateast selling methamphetamine on November 3 and 4, 2015, the audio recording and the testimony of detectives corroborated J.S.'s testimony. As a result, under our Supreme Court's rule in Novotny, the trial court did not err. Thus, Bateast's argument fails.

Was There Cumulative Error?

Bateast argues that even if this court does not find that the jury instruction errors individually require reversal of his convictions, this court should consider whether the cumulative effect of the jury instruction errors requires reversal of his convictions. Bateast's argument, however, hinges on this court finding that the trial court committed two instruction errors. Yet, as addressed in the preceding section, Bateast only established that his argument about Instruction No. 5's “intentionally or knowingly” language was error.

A single error cannot be the basis for reversal based on cumulative error. State v. Williams, 299 Kan. 509, 566, 324 P.3d 1078 (2014). As a result, Bateast's cumulative error argument fails.

Did the Trial Court Err in Calculating Bateast's Criminal History Score?

When defendants challenge their criminal history scores, they are challenging the legality of their sentences. See State v. Dickey, 301 Kan. 1018, 1021, 350 P.3d 1054 (2015). Appellate courts exercise de novo review when considering the legality of a defendant's sentence. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).

K.S.A. 2015 Supp. 21-6811 outlines how courts calculate a defendant's criminal history score. Subsection (a) provides: “Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender's criminal history, or any combination thereof, shall be rated as one adult conviction ․ of a person felony for criminal history purposes.” Subsection (e)(2)(A) provides that if the out-of-state crime was considered a felony in the convicting state, then Kansas would consider it a felony. If the out-of-state crime was considered a misdemeanor in the convicting state, then Kansas would refer to the comparable Kansas offense to classify the out-of-state offense as either a class A, B, or C misdemeanor. K.S.A. 2015 Supp. 21-6811(e)(2)(B). On the other hand, subsection (e)(3) states: “If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state crime shall be classified as a nonperson crime.”

Our Supreme Court has interpreted K.S.A. 2015 Supp. 21-6811(e)(3) to mean that courts cannot classify a defendant's prior out-of-state conviction as a person crime unless the elements of the out-of-state offense are identical to or narrower than the Kansas person crime to which it is being compared. State v. Wetrich, 307 Kan. 552, 562, 412 P.3d 984 (2018). Moreover, in Dickey, our Supreme Court adopted the categorical and modified categorical approaches outlined by the United States Supreme Court in Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L.Ed.2d 438 (2013). Dickey, 301 Kan. at 1037-39. The modified categorical approach applies when the out-of-state offense the defendant violated is divisible, meaning that it lists one or more elements of the offense in the alternative. In such cases, the trial court may look at documents like journal entries to determine what alternative the defendant violated and then determine if the alternative the defendant violated has a comparable Kansas offense. State v. Gensler, 308 Kan. 674, 682-83, 423 P.3d 488 (2018).

Bateast's final argument on appeal is that the trial court miscalculated his criminal history score because it converted his Mississippi domestic violence simple assault conviction along with two Kansas domestic battery convictions to increase his criminal history score from B to A. He asserts that the trial court erred by converting his Mississippi domestic violence simple assault conviction for two reasons.

Bateast alleges that under K.S.A. 2015 Supp. 21-6811(a), the trial court was barred from converting his previous assault convictions. In relevant part, K.S.A. 2015 Supp. 21-6811(a) states:

“Every three prior adult convictions or juvenile adjudications of assault as defined in K.S.A. 21-3408, prior to its repeal, or K.S.A. 2015 Supp. 21-5412(a), and amendments thereto, occurring within a period commencing three years prior to the date of conviction for the current crime of conviction shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes.”

The plain language of K.S.A. 2015 Supp. 21-6811(a) states that courts cannot convert a defendant's previous Kansas assault convictions unless they occur within a period commencing three years before the date of conviction for the current crime of conviction.

We believe that K.S.A. 2015 Supp. 21-6811(a) should apply to Bateast's Mississippi misdemeanor convictions, which occurred in 2005, 2008, 2009, and 2010. Those convictions all fall outside the three-year window because the instant case stemmed from acts alleged to have occurred in 2015. Therefore, even if the Mississippi convictions could properly be compared to Kansas assault convictions, they were not properly converted to a third person felony. Thus, Bateast would be left with the two prior Kansas person felony convictions and, therefore, fall into criminal history category B.

Convictions affirmed, sentence vacated, and case remanded with directions.

Per Curiam: