Kimberly Streit Vogelsberg and Kasper C. Shirer won in State v. Ewing, No. 116,641 (Kan. August 2, 2019), obtaining a new sentencing hearing in a Sedgwick County theft and attempted aggravated burglary prosecution. The particular issue was whether a prior misdemeanor convictions from Arkansas were person offenses under the Kansas Sentencing Guidelines. The KSC applied its precedent in Wetrich (blogged about here), to hold that the Arkansas offense of false imprisonment was not identical or narrower than criminal restraint (a person offense):
This shows that a person who would not be guilty of criminal restraint in Kansas might be guilty of second-degree false imprisonment in Arkansas. For instance, Kansas only requires probable cause to believe a person will or is about to take property to detain a person, while Arkansas requires actual "knowing concealment" of unpurchased property or the activation of an inventory control device after notice that one is in use. Accordingly, the Kansas crime is not comparable to second-degree false imprisonment in Arkansas because circumstances justifying an act otherwise constituting the Arkansas crime are not identical to or broader than those in Kansas.
The KSC also recognized that while some forms of battery in Arkansas were the same as battery in Kansas, some others were not because they were based on negligent conduct. The KSC applied its precedent in Obregon (blogged about here) to remand for the state to prove the subsection of the Arkansas battery statute involved in the Arkansas prior convictions (if necessary after reclassifying the false imprisonment conviction).
[Update: the state filed a motion for rehearing on August 23, 2019].
[Further update: the KSC denied the state's motion for rehearing and the mandate issued on October 3, 2019].
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