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March 6, 2026 Get Citation Alerts Download PDF Add Note

State v. Evans

Supreme Court of Kansas

• Citations: None known

• Docket Number: 127467

• Opinion

• Authorities (22)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.6K)

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Combined Opinion

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 127,467

STATE OF KANSAS,
Appellee,

v.

BERT EVERETT EVANS,
Appellant.

SYLLABUS BY THE COURT

1.
The guiding principle of statutory interpretation is to give effect to the
Legislature's intent whenever that intent can be determined. To discern that intent, courts
first look at the statute's plain language, interpreting words according to their ordinary
meaning. If the language is clear and unambiguous, courts should not look beyond the
text or add meaning that does not appear in the statute. But if the statute's wording is
ambiguous, courts will consult canons of construction to resolve the ambiguity.

2.
When a defendant objects to the classification of an out-of-state conviction for
purposes of determining criminal history at sentencing, the State bears the burden to
establish criminal history by a preponderance of the evidence under K.S.A. 21-6814(c).

3.
Under Nev. Rev. Stat. § 200.380 (1995), a defendant can commit robbery by
causing fear of harm to property rather than fear of physical harm. This statute does not
require proof that the offender threatened or caused fear of bodily or physical harm or
violence as described in K.S.A. 21-6811(e)(3)(B)(i)(b). In the absence of such proof, a

1
Nevada robbery conviction under this statute must be classified as a nonperson felony
under K.S.A. 21-6811(e)(3)(B)(iii).

4.
Under Nev. Rev. Stat. § 200.380 (1995), robbery requires the presence of another
person but does not limit that person's status, permitting the victim to be an accomplice or
a participant in a drug transaction. This statute does not require proof of the presence of a
person other than the defendant, a charged accomplice, or a person engaged with the
defendant in a drug transaction as described in K.S.A. 21-6811(e)(3)(B)(i)(d). In the
absence of such proof, a Nevada robbery conviction under this statute must be classified
as a nonperson felony under K.S.A. 21-6811(e)(3)(B)(iii).

Review of the judgment of the Court of Appeals in an unpublished opinion filed January 31,
2025. Appeal from Allen District Court; TOD MICHAEL DAVIS, judge. Submitted without oral argument
September 11, 2025. Opinion filed March 6, 2026. Judgment of the Court of Appeals affirming the
district court is reversed. Judgment of the district court is reversed, the sentence is vacated, and the case is
remanded to the district court with directions.

Sam Schirer, of Kansas Appellate Defender Office, was on the briefs for appellant.

Brandon D. Cameron, county attorney, and Kris W. Kobach, attorney general, were on the briefs
for appellee.

PER CURIAM: In August 2023, Bert Everett Evans pled no contest to one count of
nonresidential burglary. The district court ordered a presentence investigation (PSI)
report, which found Evans had a criminal history score of C. In its calculations, the PSI
report classified a 2001 Nevada robbery conviction under Nev. Rev. Stat. § 200.380
(1995) as an adult person felony.

2
Before sentencing, Evans filed an objection to his criminal history score, arguing
the Nevada crime should be classified as a nonperson felony under K.S.A. 21-
6811(e)(3)(B) for purposes of calculating his criminal history score. The district court
denied the motion, finding that the Nevada offense's requirement of taking property by
force, violence, or fear of injury met Kansas' definition of conduct involving fear of
bodily or physical harm under K.S.A. 21-6811(e)(3)(B)(i)(b). On March 4, 2024, the
court sentenced Evans to 27 months in prison, suspended the sentence, and imposed 24
months of probation.

A panel of the Court of Appeals affirmed the district court's finding that the
Nevada robbery conviction was a person felony. After noting the 2019 statutory change
to how an out-of-state crime is classified for criminal history purposes, the panel found
that Evans' Nevada robbery conviction was a person felony because there were elements
present in the out-of-state offense that "correspond[ed]" with two circumstances outlined
in K.S.A. 21-6811(e)(3)(B)(i). State v. Evans, No. 127,467, 2025 WL 396983, at *1-2
(Kan. App. 2025) (unpublished opinion).

Evans filed a petition for review criticizing the panel's conclusion that an out-of-
state conviction must be classified as a person felony if one of the circumstances listed in
K.S.A. 21-6811(e)(3)(B)(i) is present in the elements of the out-of-state offense. Evans
argues the panel's conclusion "is impossible to square with K.S.A. 21-6811(e)(3)(B)(iii)'s
plain language" stating that an out-of-state felony conviction is classified as a nonperson
offense if its elements do not require proof of any listed circumstances. We granted
Evans' petition for review and ordered supplemental briefing asking the parties to discuss
statutory ambiguity, this court's recent precedents, whether stare decisis controls the
outcome in this case, and the proper burden of proof.

Having fully considered all briefing submitted by the parties, we conclude that
Evans' Nevada robbery conviction must be classified as a nonperson felony. We therefore

3
reverse the Court of Appeals and the district court, vacate Evans' sentence, and remand
for resentencing.

Preservation and standard of review

Evans argued his Nevada robbery conviction should be classified as a nonperson
felony before the district court and the panel. Evans, 2025 WL 396983, at *1-2. This
argument is thus preserved for review.

Evans' argument requires us to interpret the statute governing determination of an
offender's criminal history classification for sentencing purposes. See K.S.A. 21-6811.
Statutory interpretation presents a question of law over which appellate courts exercise
unlimited review. The guiding principle of statutory interpretation is to give effect to the
Legislature's intent whenever that intent can be determined. To discern that intent, our
analysis begins with the statute's plain language, interpreting words according to their
ordinary meaning. If the language is clear and unambiguous, courts should not look
beyond the text or add meaning that does not appear in the statute. But if the statute's
wording is ambiguous, we will consult canons of construction to resolve the ambiguity.
State v. Gomez, 320 Kan. 3, 13, 561 P.3d 908 (2025).

Kansas statutory out-of-state crime classifications

In 2019, the Legislature enacted a new elements-based test for classifying out-of-
state felonies as person or nonperson offenses for criminal history purposes:

"(B) In designating a felony crime as person or nonperson, the felony crime shall be
classified as follows:

4
(i) An out-of-state conviction or adjudication for the commission of a felony
offense, or an attempt, conspiracy or criminal solicitation to commit a felony
offense, shall be classified as a person felony if one or more of the following
circumstances is present as defined by the convicting jurisdiction in the elements
of the out-of-state offense:

(a) Death or killing of any human being;

(b) threatening or causing fear of bodily or physical harm or violence,
causing terror, physically intimidating or harassing any person;

(c) bodily harm or injury, physical neglect or abuse, restraint,
confinement or touching of any person, without regard to degree;

(d) the presence of a person, other than the defendant, a charged
accomplice or another person with whom the defendant is engaged in the
sale, distribution or transfer of a controlled substance or non-controlled
substance;

(e) possessing, viewing, depicting, distributing, recording or transmitting
an image of any person;

(f) lewd fondling or touching, sexual intercourse or sodomy with or by
any person or an unlawful sexual act involving a child under the age of
consent;

(g) being armed with, using, displaying or brandishing a firearm or other
weapon, excluding crimes of mere unlawful possession; or

(h) entering or remaining within any residence, dwelling or habitation.

(ii) An out-of-state conviction or adjudication for the commission of a felony
offense, or an attempt, conspiracy or criminal solicitation to commit a felony
offense, shall be classified as a person felony if the elements of the out-of-state

5
felony offense that resulted in the conviction or adjudication necessarily prove
that a person was present during the commission of the offense. For purposes of
this clause, the person present must be someone other than the defendant, a
charged accomplice or another person with whom the defendant is engaged in the
sale, distribution or transfer of a controlled substance or non-controlled
substance. The presence of a person includes physical presence and presence by
electronic or telephonic communication.

(iii) An out-of-state conviction or adjudication for the commission of a felony
offense, or an attempt, conspiracy or criminal solicitation to commit a felony
offense, shall be classified as a nonperson felony if the elements of the offense do
not require proof of any of the circumstances in subparagraph (B)(i) or (ii)."
K.S.A. 21-6811(e)(3)(B).

In short, this statutory framework requires an out-of-state felony conviction to be
classified as a person felony if one of the enumerated "person-related" circumstances
listed in K.S.A. 21-6811(e)(3)(B)(i) and (ii) is present in the elements of the out-of-state
offense. But if its elements do not require proof of any listed circumstance, the out-of-
state felony conviction must be classified as a nonperson offense. K.S.A. 21-
6811(e)(3)(B)(iii).

Prior precedent: Busch and Daniels

We previously applied this elements-based approach in State v. Busch, 317 Kan.
308, 528 P.3d 560 (2023), and State v. Daniels, 319 Kan. 340, 554 P.3d 629 (2024).

In Busch, this court examined five out-of-state convictions—four for New Jersey
burglary and one for New Jersey criminal trespass—to determine whether they qualified
as person or nonperson felonies under the 2019 amendments to K.S.A. 21-6811(e)(3)(B).
Regarding the burglary convictions, we noted that the New Jersey statute required proof
that a defendant entered a "'structure,'" defined broadly to include "'any building, room,

6
ship, vessel, car, vehicle or airplane.'" 317 Kan. at 312 (quoting N.J. Stat. Ann. § 2C:18-1
[West 1981]). Based on this definition, a person could violate the New Jersey statute by
entering a car or airplane—conduct outside the "residence, dwelling or habitation"
circumstance listed in K.S.A. 21-6811(e)(3)(B)(i)(h). Because the New Jersey burglary
statute did not require proof of a dwelling-related circumstance, we held that the plain
language of K.S.A. 21-6811(e)(3)(B)(iii) required the New Jersey burglary convictions to
be classified as nonperson felonies. 317 Kan. at 313.

We reached a different conclusion regarding Busch's criminal trespass conviction.
Although the New Jersey statute defined a single trespass offense, it graded the offense at
different levels depending on where the trespass occurred. Under the statute, a person
commits criminal trespass by "'knowing[ly] . . . enter[ing] or surreptitiously remain[ing]
in any structure'" without authorization. 317 Kan. at 314 (quoting N.J. Stat. Ann. §
2C:18-3[a] [West 1981]). The offense is elevated to a fourth-degree crime if the trespass
occurs in a dwelling; otherwise, it is a lesser disorderly person offense. 317 Kan. at 314
(quoting N.J. Stat. Ann. § 2C:18-3[a] [West 1981]). Because a fourth-degree trespass
necessarily involves entry into a dwelling, we found it satisfied the "residence, dwelling
or habitation" circumstance in K.S.A. 21-6811(e)(3)(B)(i)(h). In so finding, we noted the
State met its burden by designating the offense on the PSI report as "residential criminal
trespass," and Busch did not object or present evidence to the contrary. 317 Kan. at 314.
Because the PSI was sufficient to establish that the New Jersey trespass conviction fell
under the dwelling-based degree of the offense, we upheld its classification as a person
felony. 317 Kan. at 314.

A year later, in Daniels, we reaffirmed the interpretive principles established in
Busch but applied them in the context of a divisible out-of-state statute. There, the PSI
report indicated Daniels had a criminal history score of "C" based in part on classification
of a 2003 Georgia burglary conviction as a person felony. At the time of his conviction,
the Georgia burglary statute provided, in relevant part:

7
"(a) A person commits the offense of burglary when, without authority and with the intent
to commit a felony or theft therein, he enters or remains within the dwelling house of
another or any building, vehicle, railroad car, watercraft, or other such structure designed
for use as the dwelling of another or enters or remains within any other building, railroad
car, aircraft, or any room or any part thereof." Ga. Code Ann. § 16-7-1 (a) (1980).

Based on this plain text, we found the statute listed three distinct locational
elements, stated in the disjunctive, each describing a specific category of places that can
be burglarized:

• the dwelling house of another;
• any building, vehicle, railroad car, watercraft, or other structure designed for
use as a dwelling; or
• any other building, railroad car, aircraft, or room or part thereof.

Since each alternative contained a separate, finite set of locational elements, we
concluded the statute defined multiple forms of burglary, creating a divisible statute with
several distinct crimes rather than one offense with a single locational element. Daniels,
319 Kan. at 343-44. Because only some alternatives would satisfy the Kansas "residence,
dwelling or habitation" person-crime circumstance, we recognized that Daniels' "Georgia
conviction might be a nonperson felony, but it might not be." 319 Kan. at 345.

The decisive issue, then, was who bore the burden of proving which statutory
alternative formed the basis of the conviction. We answered this question by considering
precedent interpreting K.S.A. 21-6814, which sets forth the procedure for determining a
defendant's criminal history score. First, we acknowledged that it is fundamentally the
State's burden to prove a defendant's criminal history at sentencing. Daniels, 319 Kan. at
346 (citing State v. Roberts, 314 Kan. 316, 322, 498 P.3d 725 [2021]). Next, we reiterated

8
that K.S.A. 21-6814(a) contemplates two possible scenarios: (1) defendant admits to
criminal history or (2) the court determines criminal history by a preponderance of the
evidence. 319 Kan. at 346 (citing State v. Corby, 314 Kan. 794, 797, 502 P.3d 111
[2022]).

Extending the holding from Corby, we similarly concluded that when a defendant
admits the accuracy of the PSI report, that admission satisfies the State's burden to
establish both the existence and the person/nonperson classification of prior convictions
under K.S.A. 21-6814(a). Daniels, 319 Kan. at 346-47 (citing Corby, 314 Kan. at 798 [in
context of felony classification]). Finally, we held that once criminal history is
established at sentencing, any later challenge triggers K.S.A. 21-6814(c), which shifts the
burden to the defendant to prove error by a preponderance of the evidence. 319 Kan. at
348. Because Daniels admitted his PSI was correct and provided no record evidence—
such as his Georgia journal entry—to show the conviction arose under the nondwelling
alternative, he failed to meet that burden. 319 Kan. at 349.

We also explained why we did not conduct this burden-shifting analysis previously
in Busch. Notably, the parties in Busch did not raise a burden-of-proof issue, but even if
the issue had been raised, the outcome would have been the same in that case. Unlike the
Georgia statute in Daniels, the New Jersey burglary statute in Busch was nondivisible and
broader as a matter of law than the relevant enumerated circumstance under K.S.A. 21-
6811(e)(3)(B)(i)(h). Therefore, Busch's out-of-state burglary convictions were necessarily
nonperson felonies under K.S.A. 21-6811(e)(3)(B)(iii). And his criminal trespass
conviction, designated on the PSI as "residential" and unchallenged at sentencing, would
still have been scored as a person felony. Thus, the holding in Daniels did not change the
substantive rule announced in Busch—that classification depends on the statutory
elements—but clarified how this rule applies when the statute is divisible and how the
burden of proof shifts when the defendant seeks to revisit a previously admitted criminal
history. Daniels, 319 Kan. at 349-50.

9
Here, Evans objected to the scoring of his Nevada robbery conviction at
sentencing, so the State had the burden to establish that this out-of-state conviction
qualifies as a person felony under Kansas law. See K.S.A. 21-6814(c); Daniels, 319 Kan.
at 346 ("As part of this burden, the State must prove all facts necessary for the district
court to make an accurate classification for all scoreable crimes.").

Nevada crime of conviction

At the time of Evans' conviction, the Nevada robbery statute provided in part:

"1. Robbery is the unlawful taking of personal property from the person of another, or in
the person's presence, against his or her will, by means of force or violence or fear of
injury, immediate or future, to his or her person or property, or the person or property of
a member of his or her family, or of anyone in his or her company at the time of the
robbery." (Emphasis added.) Nev. Rev. Stat. § 200.380 (1995).

The Court of Appeals concluded that the Nevada robbery satisfied the
circumstances set forth in K.S.A. 21-6811(e)(3)(B)(i)(b), which includes "threatening or
causing fear of bodily or physical harm or violence," and K.S.A. 21-6811(e)(3)(B)(i)(d),
which turns on the "presence of a person" other than the defendant, a charged
accomplice, or a person involved in a drug transaction. Evans, 2025 WL 396983, at *2.
The panel reasoned that robbery, by definition, is committed against another person and,
in this case, involved force, violence, or fear. 2025 WL 396983, at *2.

But that analysis does not account for the full scope of Nevada's statute. Under
Nev. Rev. Stat. § 200.380 (1995), a defendant can commit robbery by causing fear of
harm to property rather than fear of physical harm. And although the Nevada robbery
statute requires the presence of another person, it does not limit that person's status,

10
permitting the victim to be an accomplice or a participant in a drug transaction. Because
the Nevada statute

• does not require proof that the offender threatened or caused fear of bodily or
physical harm or violence as described in K.S.A. 21-6811(e)(3)(B)(i)(b), and

• does not require proof of the presence of a person other than the defendant, a
charged accomplice, or a person engaged with the defendant in a drug
transaction as described in K.S.A. 21-6811(e)(3)(B)(i)(d).

Evans' Nevada robbery conviction must be scored as a nonperson felony under K.S.A.
21-6811(e)(3)(B)(iii).

Judgment of the Court of Appeals affirming the district court is reversed.
Judgment of the district court is reversed, Evans' sentence is vacated, and the case is
remanded to the district court for resentencing consistent with this opinion.

LUCKERT, J., not participating.

---

BILES, J., concurring: I agree Bert Evans' Nevada robbery conviction qualifies as
a nonperson felony under K.S.A. 21-6811(e)(3)(B), but I take a different analytical path
to reach that conclusion. In my view, the majority opinion misses the mark in its statutory
interpretation, erroneously focuses on the Nevada robbery statute's injury-to-property
element, and improperly employs the federal divisibility framework. My reasoning sticks
with state statutory interpretation. Finally, I argue we need to revisit State v. Busch, 317
Kan. 308, 528 P.3d 560 (2023), and State v. Daniels, 319 Kan. 340, 554 P.3d 629 (2024),
and face the reality both were wrongly decided.
11
PART ONE: THE MEANING OF "SHALL" IN K.S.A. 21-6811(e)(3)(B)

The majority fails to engage in proper statutory analysis. It quotes at length K.S.A.
21-6811(e)(3)(B)'s statutory language, discusses Busch and Daniels, and concludes
Evans' out-of-state conviction must be classified as a nonperson felony. But nowhere
does it analyze the statute to address the issue this court identified in our follow up order
after oral arguments: "Whether the plain language of K.S.A. 21-6811(e)(3)(B)(i) and
(iii), when read together, create an ambiguity in classification of out-of-state prior
convictions that requires resort to legislative history and canons of construction, or
whether the plain language of subsection (iii) unambiguously reflects a legislative intent
to limit subsection (i)."

K.S.A. 21-6811(e)(3)(B) governs classifying an out-of-state felony conviction as
person or nonperson. K.S.A. 21-6811(e)(3)(B)(i) provides the conviction "shall be
classified as a person felony if one or more of the following circumstances is present as
defined by the convicting jurisdiction in the elements of the out-of-state offense."
(Emphasis added.) And K.S.A. 21-6811(e)(3)(B)(iii) states the conviction "shall be
classified as a nonperson felony if the elements of the offense do not require proof of any
of the circumstances in subparagraph (B)(i) or (ii)." (Emphasis added.)

Independently, the text of these two subparagraphs seems clear enough. See State
v. Griffin, 312 Kan. 716, 720, 479 P.3d 937 (2021) ("When interpreting a statute, a court
begins with legislative intent. The best and safest rule for discerning that intent is the
statute's plain language. A court does not move on to consider tools of statutory
construction unless the statutory language is unclear or ambiguous."). The problem
comes when we read them together. How should a conviction be classified when the out-
of-state offense includes one of the listed circumstances and does not require proof of
that circumstance?

12
Subparagraph (B)(i) directs the conviction "shall be classified as a person felony,"
while subparagraph (B)(iii) provides the conviction "shall be classified as" nonperson.
K.S.A. 21-6811(e)(3). Giving "shall" its plain meaning in both subparagraphs results in
two mandatory provisions that lead to diametrically opposed classifications. See Schmidt
v. Trademark, Inc., 315 Kan. 196, 204, 506 P.3d 267 (2022) (generally, identical words
used in different parts of the same statute are presumed to carry the same meaning to
promote consistency in interpretation); Merriam-Webster Online Dictionary (defining
"shall" as "what is inevitable" or "in laws, regulations, or directive to express what is
mandatory").

This is trademark textual ambiguity. As State v. Raschke, 289 Kan. 911, 914-15,
219 P.3d 481 (2009), recognized, the meaning of "shall" is not always plain and may
require construction. My bottom line is that K.S.A. 21-6811(e)(1) requires out-of-state
convictions to be used in classifying an offender's criminal history, and K.S.A. 21-
6811(e)(3) directs that those convictions be designated as either person or nonperson
crimes. Subparagraphs (e)(3)(B)(i) and (iii) therefore operate as opposite sides of the
same classification decision. And the Legislature used "shall" language in both
provisions, even though their operative conditions could overlap, making it impossible
for both directives to simultaneously operate as mandatory in some circumstances.
Common sense tells me one must yield.

If subparagraph (B)(i) is treated as mandatory, while (B)(iii) is seen as merely
suggestive, it renders (B)(iii) superfluous because any out-of-state statute that includes a
listed circumstance—even if that circumstance's proof is not required—will always be
classified under (B)(i). And that means subparagraph (B)(iii) would never independently
govern a classification outcome in that scenario, which is contrary to our rule that courts
must, if possible, give effect to every provision and avoid constructions that render
statutory language meaningless. See State v. Keel, 302 Kan. 560, 574, 357 P.3d 251

13
(2015) ("We also 'construe statutes in such a way as to avoid unreasonable results, and
we presume that the legislature does not intend to enact meaningless or redundant
legislation.'").

To avoid any meaningless or unreasonable outcome, the only viable construction
is to treat (B)(iii) as mandatory. So here, we must use our methods of statutory
construction to determine what the Legislature intended with its use of "shall." In her
concurrence, Justice Standridge employs one of these methods, the doctrine of in pari
materia, but does so to decide the statute is clear. She explains:

"Statutory interpretation begins with text. When employing a plain language
interpretation, courts consider not only the language itself, but also the specific context in
which that language is used and the broader context of the statute as a whole. In this
regard, 'the doctrine of in pari materia has utility beyond those instances where statutory
ambiguity exists.' Bruce v. Kelly, 316 Kan. 218, 224, 514 P.3d 1007 (2022). As we have
explained, '[i]t can be used as a tool to assess whether the statutory language is plain and
unambiguous in the first instance, and it can provide substance and meaning to a court's
plain language interpretation of a statute.' 316 Kan. at 224." 321 Kan. at __, slip op. at 32-
33 (Standridge, J., concurring).

In pari materia can "provide substance and meaning" to a plain language
interpretation, but only "to lend support" to the validity of a plain language analysis that
is already clear. Bruce, 316 Kan. at 224-25. In Bruce, the court first gave the statutory
terms their ordinary meaning and then used the doctrine to confirm the provisions
operated together in harmony. 316 Kan. at 229-30. That is fundamentally different from
the situation here, in which we must reconcile two conflicting uses of "shall" within the
same statute. Unlike the provisions in Bruce, which could be read together without
tension, the plain meaning of subparagraphs (B)(i) and (B)(iii) point in opposite
directions when an out-of-state statute includes, but does not require, a circumstance
listed in (B)(i).

14
Simply put, Justice Standridge's application of in pari materia appears to me to
bypass a structural clash in the text. I believe using the doctrine in this way stretches
Bruce beyond its limits. When two mandatory provisions within the same statute dictate
different outcomes for the same out-of-state conviction, in pari materia does not confirm
the statute's clarity; rather, it resolves the obvious ambiguity. Still, I agree with the
majority and Justice Standridge's conclusion that subparagraph (B)(iii) controls Evans'
case. But my analytical path to get to that outcome is different. I believe the statute is
ambiguous, but under the doctrine of in pari materia and the canon against surplusage,
subparagraph (B)(iii) takes precedence over the conflicting mandate in subparagraph
(B)(i). And this construction is consistent with the rule of lenity. See State v. Horn, 288
Kan. 690, Syl. ¶ 3, 206 P.3d 526 (2009) ("Where the legislature permits the existence of
conflicting statutory provisions prescribing different sentences to be imposed for a single
criminal offense, the rule of lenity requires that any reasonable doubt as to which
sentence applies must be resolved in favor of the offender.").

PART TWO: APPLYING KANSAS LAW TO THE NEVADA ROBBERY STATUTE

Next, we need to focus on whether Evans' Nevada conviction could trigger
subparagraph (B)(i)'s person classification by examining if one of the listed
circumstances is present in the statutory elements of the Nevada offense, not just in a
particular case's facts. See K.S.A. 21-6811(e)(3)(B)(i) ("An out-of-state conviction . . .
for the commission of a felony offense . . . shall be classified as a person felony if one or
more of the following circumstances is present as defined by the convicting jurisdiction
in the elements of the out-of-state offense." [Emphasis added.]). Here, the specific
circumstances at issue are K.S.A. 21-6811(e)(3)(B)(i)(b) ("threatening or causing fear of
bodily or physical harm or violence, causing terror, physically intimidating or harassing
any person") and (i)(d) ("the presence of a person").

15
The majority holds the Nevada robbery statute requires neither. 321 Kan. at __,
slip op. at 10-11. It concludes subparagraph (i)(d) does not apply because the Nevada
statute permits a conviction based on the presence of any person, without excluding an
accomplice or a participant in a drug transaction. I agree, although I feel the need to
provide more than the majority's single sentence to explain why. As for its reasoning that
subparagraph (i)(b) does not apply because Nevada allows a conviction based on fear of
injury to property, I must depart. That said, I agree with the outcome that neither
subparagraph applies to Evans' case.

To begin, the poor drafting of subparagraph (i)(d) prevents classifying Evans'
conviction as a person felony. K.S.A. 21-6811(e)(3)(B)(i)(d) classifies offenses
committed in "the presence of a person, other than the defendant, a charged accomplice
or another person with whom the defendant is engaged in the sale, distribution or transfer
of a controlled substance or non-controlled substance" as a person felony. But Nevada's
definition of robbery does not limit who must be present in this way. See Nev. Rev. Stat.
§ 200.380 (1995) ("Robbery is the unlawful taking of personal property from the person
of another, or in the person's presence . . . by means of force or violence or fear of injury
. . . to his or her person or property . . . ."). Even Kansas' own robbery statute contains no
such exclusions. See K.S.A. 21-5420(a) ("Robbery is knowingly taking property from the
person or presence of another by force or by threat of bodily harm to any person."). Nor
did I find such a limitation in my survey of all other states' robbery statutes.

In a total disconnect from the purpose of classifying felonies as person or
nonperson, subparagraph (i)(d)'s exclusion of certain individuals effectively forecloses
classifying many robberies committed in the presence of others as a person felony. As a
result, unless an out-of-state statute replicates Kansas' precise exclusionary language,
subparagraph (i)(d) will never be met. But we must apply it as written, not as we might
wish the Legislature had drafted it. See State v. Ayers, 309 Kan. 162, 164, 432 P.3d 663
(2019) (when a statute is clear, courts must enforce its express language rather than

16
rewrite it); State v. Ninh, 320 Kan. 477, 490, 570 P.3d 1169 (2025) (courts "do not add or
ignore statutory [text]").

More crucially, if the listed circumstances are not in the elements of a foreign
criminal statute, applying them to increase the penalty beyond the statutory maximum
violates Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000) (requiring any fact increasing a criminal penalty be submitted to a jury and proved
beyond a reasonable doubt). The practical futility of subparagraph (i)(d) stems not from
the phrase "in the elements of the out-of-state offense" itself, but from the requirement
that certain individuals be excluded under foreign statutes. Accordingly, I agree with the
majority that subparagraph (i)(d) is inapplicable to Evans' case.

As for subparagraph (i)(b)'s inapplicability, my disagreement with the majority's
rationale comes from its reliance on one of the Nevada statute's four possible means of
commission—fear of injury to property. The majority holds that under the Nevada law "a
defendant can commit robbery by causing fear of harm to property rather than fear of
physical harm," and therefore "[t]his statute does not require proof that the offender
threatened or caused fear of bodily or physical harm or violence as described in K.S.A.
21-6811(e)(3)(B)(i)(b). In the absence of such proof, a Nevada robbery conviction under
this statute must be classified as a nonperson felony under K.S.A. 21-6811(e)(3)(B)(iii)."
(Emphasis added.) 321 Kan. __, Syl. ¶ 3. In short, it views the Nevada statute as broader
than subparagraph (i)(b) because it includes fear of injury to property as a means. This
has at least two problems.

First, the statute uses the phrase "by means of . . . fear of injury." Nev. Rev. Stat. §
200.380 (1995). It does not state "causing" as the majority writes. The difference in the
majority's paraphrasing may be subtle but potentially significant. One might conclude
"causing fear" focuses on the defendant's action that induces an emotional response in a
victim, while "by means of . . . fear" might emphasize the defendant exploiting the

17
victim's fear. If so, the latter language would not specify who is responsible for causing
that fear. I see no reason to resolve this difference in this decision. But the majority's
paraphrasing injects imprecision into an analytical process that demands precision
because it concerns someone's term of imprisonment.

Second, and more substantively in Evans' case, the majority's holding is plainly
inconsistent with subparagraph (i)(b) including "causing fear of . . . physical harm" as a
circumstance in addition to "bodily harm." See K.S.A. 21-6811(e)(3)(B)(i)(b)
("threatening or causing fear of bodily or physical harm or violence, causing terror,
physically intimidating or harassing any person"). "Physical harm" means "[a]ny physical
injury or impairment of land, chattels, or the human body." Black's Law Dictionary 857
(12th ed. 2024). And since this subparagraph already covers "bodily harm," "physical
harm" should be interpreted more broadly to include property—both real (land) and
personal (chattels). See Delaney v. Deere & Co., 268 Kan. 769, 775, 999 P.2d 930 (2000)
("It is presumed the legislature understood the meaning of the words it used and intended
to use them, that the legislature used the words in their ordinary and common meaning,
and the legislature intended a different meaning when it used different language . . . .").
This is why I disagree with the opinion's reliance on "injury to property."

Nevertheless, I reach the same conclusion that Evans' prior conviction should be
classified as a nonperson felony, but on a different basis: Nevada's first two means (force
and violence) are broader than any of the five circumstances listed in K.S.A. 21-
6811(e)(3)(B)(i)(b). Those circumstances are: (1) threatening bodily or physical harm or
violence, (2) causing fear of bodily or physical harm or violence, (3) causing terror, (4)
physically intimidating, and (5) physically harassing. Each one requires specific conduct
that creates a psychological effect on another person. For instance, the Kansas Criminal
Code requires a "threat" "communicate[] intent to inflict physical or other harm." K.S.A.
21-5111(ff). And while the code does not define the other terms, the Protection from
Stalking Act defines "harassment" as a "course of conduct directed at a specific person

18
that seriously alarms, annoys, torments or terrorizes the person." K.S.A. 60-31a02(d)(1).
Black's Law Dictionary 1781 (12th ed. 2024) defines "terror" as "[e]xtreme fear." Finally,
Merriam-Webster Online Dictionary defines "intimidate" as "to make timid or fearful."

The Nevada statute expands past these bounds by using the terms force and
violence, which respectively refer to the "[s]trength or energy exerted" and "[t]he use of
physical force." See Black's Law Dictionary 783, 1887 (12th ed. 2024). Cf. Nev. Rev.
Stat. § 200.380 (1995) ("The degree of force used is immaterial . . . ."); Chappell v. State,
114 Nev. 1403, 1408, 972 P.2d 838 (1998) ("The statute does not require that the force or
violence be committed with the specific intent to commit robbery.").

Although my analytical paths differ from the majority's, I agree that the Nevada
statute does not trigger a person classification.

PART THREE: FEDERAL DIVISIBILITY FRAMEWORK & DANIELS

This court's supplemental briefing order directed the parties to explain how the
holdings in Busch, 317 Kan. 308, and Daniels, 319 Kan. 340, govern K.S.A. 21-
6811(e)(3)(B)'s interpretation because neither party mentioned them in their original
briefing. We further instructed them, in addressing these cases, to discuss whether we
should consider the divisibility of an out-of-state statute when the question does not
implicate a federal constitutional concern, given that the analysis focuses on whether the
offense should be classified as a person or nonperson crime under Kansas law. While the
Busch court did not discuss divisibility, the Daniels court relied on divisibility in its
analysis.

Regrettably, neither party responds to this court's specific question as to whether
divisibility should be considered in the absence of any federal constitutional concern.
Evans simply asserts divisibility has no bearing on his case because no party claims he

19
was convicted under a divisible statute. The State, on the other hand, contends the
Nevada statute contains both divisible and indivisible aspects, without explaining why.
Cf. Mathis v. United States, 579 U.S. 500, 518, n.7., 136 S. Ct. 2243, 195 L. Ed. 2d 604
(2016) (acknowledging divisibility inquiry is not a simple or self-evident one); Descamps
v. United States, 570 U.S. 254, 264, n.2, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013)
(same).

The majority also fails to address this issue. Instead, it simply reaffirms Daniels'
divisibility analysis rather than dispelling any doubts about its utility. 321 Kan. at __, slip
op. at 7-11. For my part, I have come to appreciate Daniels was wrongly decided and
improperly invokes divisibility to analyze an out-of-state statute under Kansas law. It also
misapplied that framework to interpret K.S.A. 21-6814 and, in the end, reached incorrect
conclusions regarding both classification and the parties' respective burdens.

In Daniels, a presentence investigation (PSI) report classified Daniels' 2003
Georgia burglary conviction as a person felony, without any further support beyond the
applicable Georgia statute. At sentencing, Daniels conceded the criminal history was
correct, and the State offered no details about the Georgia conviction. On appeal, he
challenged the 2003 conviction's classification, arguing the Georgia burglary statute was
broader than Kansas' definition of a person crime because it could be violated by burgling
structures other than dwellings. He contended the conviction must be scored as a
nonperson felony, as a matter of law, under K.S.A. 21-6811(e)(3)(B)(iii).

The Daniels court's analysis focused on two primary issues: the Georgia statute's
divisibility and the statutory burden of proof. First, it determined the Georgia statute was
divisible. Daniels, 319 Kan. at 344. This statute provided:

20
"'A person commits the offense of burglary when, without authority and with the
intent to commit a felony or theft therein, he enters or remains within the dwelling house
of another or any building, vehicle, railroad car, watercraft, or other such structure
designed for use as the dwelling of another or enters or remains within any other
building, railroad car, aircraft, or any room or any part thereof. . . .' Ga. Code Ann. § 16 -
7-1(a) (1980)." 319 Kan. at 343.

The Daniels court identified three alternative versions of the crime based on the
burglary's location: (1) a dwelling house, (2) a structure designed for use as a dwelling,
or (3) any other building or vehicle. Because two of the three versions involved a
residence or dwelling—matching the criteria for a person felony under K.S.A. 21-
6811(e)(3)(B)(i)(h) ("entering or remaining within any residence, dwelling or
habitation")—the court held the Georgia conviction was not a nonperson crime as a
matter of law. Instead, it noted the classification depended on which specific alternative
version Daniels committed. 319 Kan. at 343-45.

Next, the court explained K.S.A. 21-6814 establishes a two-stage process for
determining criminal history classification under K.S.A. 21-6811, with a shifting burden
of proof. At the initial stage, the State must prove a defendant's criminal history,
including the person or nonperson classification, by a preponderance of the evidence. The
State is relieved of this burden unless the defendant contests the PSI report with a timely,
written notice specifying the exact nature of the error. Only if the defendant files such a
notice must the State produce evidence, such as journal entries from the prior conviction's
trial, to support its calculation. 319 Kan. at 346-47.

The sentencing court then formally establishes a defendant's criminal history, and
stage two begins with the burden of proof shifting to the defendant for any subsequent
challenge. Under K.S.A. 21-6814(c), the defendant must prove the established history is
wrong by a preponderance of the evidence. So, according to Daniels, a defendant
challenging a divisible out-of-state statute cannot prevail merely by showing the foreign
21
statute is broader than Kansas law. Instead, they must produce specific documentation,
such as the out-of-state charging document or judgment, to prove they were convicted
under a nonperson version of the offense. 319 Kan. at 347-49.

The court held Daniels failed to meet his burden because he admitted his criminal
history at sentencing and did not provide evidence on appeal to demonstrate he was
convicted under the statute's nondwelling (nonperson) version. It affirmed the person-
felony classification. 319 Kan. at 349-50.

I believe Daniels misunderstood divisibility's application articulated by the United
State Supreme Court in Descamps. To clarify what divisibility means, Descamps
provides guidance. After the Government sought to impose an enhanced sentence on
Descamps for his prior convictions under the Armed Career Criminal Act (ACCA),
Descamps challenged the classification of his California conviction for burglary. See
Descamps, 570 U.S. at 257 ("[The ACCA] increases the sentences of certain federal
defendants who have three prior convictions 'for a violent felony,' including 'burglary,
arson, or extortion.'"). He specifically argued burglary under California Penal Code § 459
(2010), which criminalized any entry with intent to commit theft or a felony, was broader
than the ACCA's generic "breaking and entering" requirement. The sentencing court
disagreed, relying on the prior conviction's record to find his action met the generic
definition.

But the Court reversed the sentencing court, holding it violated Apprendi by
engaging in fact-finding to decide whether Descamps' action satisfied an element
(breaking) not contained within the California burglary statute. 570 U.S. at 258-60; see
also Apprendi, 530 U.S. at 490 ("Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt."). The Court explained that,
to avoid an Apprendi violation, a sentencing court may employ one of two approaches.

22
When a statute has a single set of elements, it is indivisible, and the sentencing court
should apply the categorical approach. When a statute contains alternative elements, it is
divisible, and the court should employ the modified categorical approach to consult a
limited set of "'reliable materials'"—such as charging papers, plea agreements, and jury
instructions—to identify which alternative formed the basis of the conviction. 570 U.S. at
265. The modified approach cannot be used for indivisible statutes. 570 U.S. at 260-62.

Although Descamps applied divisibility to ACCA predicate offenses, our court
adopted it in State v. Dickey, 301 Kan. 1018, 1038-39, 350 P.3d 1054 (2015), for
classifying prior convictions under the Kansas Sentencing Guidelines Act. Dickey is
foundational not only because it was the first Kansas case to adopt Descamps, but also
because it properly addressed divisibility within the state sentencing law's framework.

In Dickey, the PSI report classified Dickey's 1992 juvenile burglary adjudication
as a person felony. To do so, it assumed the burglary involved a dwelling. But Kansas'
burglary statute in effect at that time did not distinguish between dwellings and
nondwellings, nor did it require proof the structure was used or intended for human
habitation. Dickey conceded his criminal history at sentencing but then challenged it on
appeal, asserting the person-felony classification violated his Sixth Amendment rights
under Descamps and Apprendi. 301 Kan. at 1021-26.

Applying Descamps, the Dickey court held the multiple, alternative versions of
burglary presented in the prior adjudication were irrelevant to classifying it as a person
felony because the statute did not require the burglarized structure be a dwelling. Without
the "dwelling" element, the adjudication could only have been classified as a nonperson
felony. 301 Kan. at 1039-40. In reaching this decision, it emphasized two points. First, a
prior conviction based on a divisible statute allows a sentencing court to consult a limited
universe of reliable materials to identify which alternative formed the conviction's basis.
In this way, divisibility functions as a gatekeeper to determine when resorting to a prior

23
conviction's record is constitutionally permissible. 301 Kan. at 1037-38. Second, Kansas
law controls classifying a prior conviction for criminal history purposes, subject to the
federal constitutional protections of Apprendi and Descamps. Dickey, 301 Kan. 1018,
Syl. ¶¶ 6-7.

Since Dickey, our courts have applied divisibility consistently with Descamps. For
instance, in State v. Rodriguez, 305 Kan. 1139, 1154, 390 P.3d 903 (2017), the court held
that unless a party (typically the State because it prefers isolating the elements of the out-
of-state crime) claims a statute is divisible, courts should not engage in divisibility
analysis. In State v. Hill, No. 112,545, 2018 WL 1239126, at *1-2 (Kan. 2018)
(unpublished opinion), the court rejected the need to apply Descamps' divisibility absent
federal constitutional concerns. In State v. Gensler, 308 Kan. 674, 685, 423 P.3d 488
(2018), the court held that when a statute is indivisible, the modified categorical approach
could not be used. In State v. Schrader, 308 Kan. 708, 712-13, 423 P.3d 523 (2018), the
court noted divisibility inquiry is limited to determining which alternative version of a
statute formed the basis of the prior conviction. And in State v. Gales, 312 Kan. 475, 485-
86, 476 P.3d 412 (2020), the court reaffirmed the holdings from Hill and Gensler.

Granted, the Legislature's many amendments to K.S.A. 21-6811 means each of
these cases interpreted different statutory language, none of which is the same as the
language here in Evans. But that does not affect our analysis here because these cases
discuss divisibility as a matter of federal law and applying divisibility to a prior
conviction depends, not on K.S.A. 21-6811 itself, but on relevant out-of-state statutes.

With this in mind, Evans' case has prompted me to revisit Daniels because the
court applied the divisibility framework even though the parties did not raise any federal
constitutional concerns, rendering the sentencing issue purely a matter of state law. I now
believe Daniels was wrongly decided in this respect.

24
In Daniels, the PSI report listed a Georgia burglary conviction with only the
statute as support. The State did not attempt to identify the specific version of the
burglary statute underlying Daniels' prior conviction. Daniels admitted the conviction
was a person felony at sentencing but later challenged that classification on appeal, which
he was permitted to do because a defendant may raise an illegal sentencing claim at any
time. See K.S.A. 22-3504(a) ("The court may correct an illegal sentence at any time
while the defendant is serving such sentence."); Dickey, 301 Kan. 1018, Syl. ¶ 4 (a
defendant's agreement or silence about the convictions listed in the PSI report may bar
later challenges to their existence, but it does not prevent contesting how those
convictions are legally classified or counted for criminal history purposes).

Daniels correctly argued the Georgia statute presented in the district court was
more expansive than Kansas' definition of a person crime because it could be violated by
burgling structures other than dwellings. He also correctly contended that, as a matter of
law, the conviction must be scored as a nonperson felony under K.S.A. 21-
6811(e)(3)(B)(iii). But the Daniels court rejected his claims and held that because the
Georgia statute was divisible (three alternative versions of the crime) and because two
versions involved a residence or dwelling, Daniels' Georgia conviction was not a
nonperson crime as a matter of law. 319 Kan. at 345.

Essentially, the Daniels court improperly used divisibility to classify a prior
conviction, when both Descamps and our Kansas precedent make clear divisibility is only
a tool to determine whether the court may consult a prior conviction's record. See
Descamps, 570 U.S. at 260-62; Schrader, 308 Kan. at 712-13. The Daniels court
incorrectly employed this federal standard to analyze—classifying prior convictions—an
issue controlled by Kansas law. See Gales, 312 Kan. at 485-86; Hill, 2018 WL 1239126,
at *1-2.

25
Furthermore, Rodriguez should have limited the Daniels court's analysis to the
statutory elements, as provided in the PSI report, under K.S.A. 21-6811(e)(3)(B)(i)
(person felony) and (iii) (nonperson felony) because the State failed to identify the
specific version of the prior crime Daniels committed. A proper legal analysis under
Rodriguez would have shown the Georgia statute did not require proof of any of the
circumstances listed in subparagraph (B)(i), meaning it should have been classified as a
nonperson offense, as a matter of law.

Next, the Daniels court was fundamentally incorrect in interpreting K.S.A. 21-
6814(c) to require a defendant "later" challenging a divisible statute to produce reliable
documentation to prove they were convicted under a nonperson version. See 319 Kan. at
348-49. First, under Hill and Gales, federal law is irrelevant when the issue is governed
by state statute. Second, divisibility is used to identify which alternative version of a prior
offense a defendant committed, not to bar a defendant from arguing the out-of-state
statute does not require proof of the subparagraph (B)(i)'s circumstances. This is
especially poignant because the State made no attempt to determine which alternative
applied to Daniels.

Additionally, the Daniels court erroneously held he failed to meet his burden
because he was required to provide documents on appeal after conceding his criminal
history at sentencing. See 319 Kan. at 349-50. Granted, Daniels needed to show the
classification was wrong, but he was not required to argue the Georgia statute's
divisibility or provide the Georgia record. He raised a purely legal question of whether
the Georgia statute provided in the PSI report qualified as a Kansas person crime under
K.S.A. 21-6811(e)(3)(B). In other words, the district court erred at the outset when it
concluded the Georgia conviction was a person felony because it did not require proof of
"entering or remaining within any residence, dwelling or habitation" under subparagraph
(B)(i)(h). The district court should have invoked subparagraph (B)(iii), as a matter of law,
and held the prior conviction was a nonperson crime.

26
To recap, the Daniels court erred by applying federal law to dismiss Daniels' legal
argument under state law. The federal divisibility framework is inapplicable when the
State does not attempt to identify the specific version of the offense, and the State's
failure does not shift the burden to the defendant to produce a record at sentencing or on
appeal. If a PSI report lists a prior conviction and the State does not specify which
version, the question before an appellate court is whether a district court properly
classified the prior conviction, based on what is found in the PSI, under the KSGA.
Moreover, to uphold the district court's person-felony classification, the Daniels court
would have needed to examine the Georgia record. But the district court record was
undeveloped because the State neither argued the statute was divisible nor offered
reliable materials showing Daniels committed the dwelling version of the burglary crime.
And from this, I believe the Daniels court had no basis to affirm the district court's
person-felony classification as a matter of law.

On a final note, reading K.S.A. 22-3504 (motion to correct an illegal sentence) and
K.S.A. 21-6814 (procedures establishing criminal history) together shows K.S.A. 21-
6814 governs how a district court establishes a defendant's criminal history as a factual
matter consistent with Apprendi and Descamps. In contrast, the classification of those
convictions as person or nonperson offenses is a legal question under K.S.A. 21-6811.
Unlike factual challenges governed by K.S.A. 21-6814(d), which require a showing of
prejudicial error when raised for the first time on appeal, legal errors in classification may
be corrected "at any time" under K.S.A. 22-3504(a). Dickey confirms this distinction,
explaining that while a defendant's agreement or silence regarding convictions in a PSI
report may bar challenges to their existence on appeal, it does not preclude challenges to
their legal classification. Dickey, 301 Kan. 1018, Syl. ¶ 4. Accordingly, the Daniels court
erred by applying K.S.A. 21-6814 to reject Daniels' legal classification claim.

27
This leads me to Busch, 317 Kan. 308, which came a year before Daniels. In
Busch, the PSI report classified several New Jersey convictions as person felonies: four
burglaries and one criminal trespass. For each of these offenses, the report indicated the
offense was "residential" by placing that designation in parentheses after the offense
name. The Busch court correctly held the burglary convictions should be classified as a
nonperson felony under K.S.A. 21-6811(e)(3)(B)(iii) because the New Jersey statute's
element "structure" was broader than subparagraph (B)(i)(h) ("residence, dwelling or
habitation"). 317 Kan. at 309-13.

But the Busch court incorrectly reasoned the PSI report constituted "evidence the
district court could consider when determining whether the State had carried its burden of
proof" to conclude the criminal trespass conviction was properly classified as a person
felony. (Emphasis added.) 317 Kan. at 313-14. But see Gales, 312 Kan. at 482-85
(although Cal. Penal Code § 460 defined burglary degrees, the record said nothing about
Gales' specific degree, so the court focused on § 459 and held it indivisible). Although
the Busch court did not expressly use the term "divisible," its flawed rationale mirrors the
reasoning in Daniels. Even if the New Jersey criminal trespass statute were divisible—
such that the district court could consult the New Jersey trial record—the parenthetical
"residential" is not among the limited, reliable materials Descamps permits a court to
examine.

Besides, Busch is internally inconsistent. For the burglary convictions, the court
declined to rely on the "residential" notation in the PSI report but did so for the criminal
trespass conviction. 317 Kan. at 313-14. This court should own up to this and hold Busch
was partially wrong so we may avoid sentencing errors going forward.

For these reasons, I agree Evans' Nevada robbery conviction qualifies as a
nonperson felony under K.S.A. 21-6811(e)(3)(B).

28

---

WALL, J., concurring: I join Part One of Justice Biles' concurring opinion. I agree
that the use of "shall" in both K.S.A. 21-6811(e)(3)(B)(i) and (iii) creates statutory
ambiguity. And when applying the in pari materia doctrine and the rule of lenity,
subparagraph (B)(iii) prevails "over the conflicting mandate in subparagraph (B)(i)."
State v. Evans, 321 Kan. __, __, slip op.at 15.

But when applying this construction to the Nevada robbery statute, I agree with
the majority's holding that the out-of-state conviction must be scored as a nonperson
felony. Specifically, a defendant can commit robbery under Nev. Rev. Stat. § 200.380
(1995) by causing fear of harm to property rather than fear of physical harm. 321 Kan. at
___, slip op. at 10. So the out-of-state conviction does not require proof that the offender
threatened or caused fear of bodily or physical harm or violence as described in K.S.A.
21-6811(e)(3)(B)(i). And K.S.A. 21-6811(e)(3)(B)(iii) requires the sentencing court to
score the conviction as a nonperson felony.

Thus, I would vacate Evans' sentence and remand for resentencing.

STEGALL, J., joins the foregoing concurring opinion.

---

STANDRIDGE, J., concurring: I agree that Evans' Nevada robbery conviction must
be classified as a nonperson felony under K.S.A. 21-6811(e)(3)(B)(iii). I write separately
to explain more fully why the statutory framework adopted in 2019 leads to this result
and to address concerns in the separate writing of my colleagues.

29
This case presents an opportunity to reaffirm how the Legislature structured the
out-of-state classification scheme and to clarify how subsections (i), (ii), and (iii) function
together as a coherent whole. The analysis is not complicated once the statute is read as
the Legislature wrote it.

The 2019 amendments to K.S.A. 21-6811(e)(3)(B) created an elements-based test
using three rules that form an integrated framework to classify as person or nonperson
those out-of-state felonies in an offender's criminal history:

• Subsection (i): An out-of-state conviction shall be classified as a person felony if
any listed "person-related" circumstance enumerated in this subsection is present
in the elements of the out-of-state offense as defined by the convicting jurisdiction.

• Subsection (ii): An out-of-state conviction shall be a person felony if its elements
necessarily prove the presence of a qualifying person as defined in this subsection.

• Subsection (iii): If the elements of the out-of-state offense do not require proof of
any circumstance in (i) or (ii), the out-of-state conviction shall be classified as a
nonperson felony. K.S.A. 21-6811(e)(3)(B).

Evans claims the district court and the Court of Appeals panel erred in relying
solely on K.S.A. 21-6811(e)(3)(B)(i) and (ii) to classify his 2001 Nevada robbery
conviction as a person felony. He argues both courts ignored subsection (iii), which
requires the Nevada conviction to be classified as a nonperson felony because the
elements of the out-of-state offense in 2001 did not require proof of any circumstance in
(i) or (ii).

At the time of his 2001 conviction, the Nevada statute defined robbery as taking
property against a person's will by force, violence, or fear of injury to a person or
30
property. See Nev. Rev. Stat. § 200.380 (1995). As Evans points out, one could violate
the Nevada robbery statute by placing another in fear of injury to property rather than
fear of bodily or physical harm—the qualifying circumstance under subsection (i)(b).
And while the Nevada statute requires the presence of another person, there is no
limitation on that person being a charged accomplice or someone with whom the
defendant was engaged in the sale, distribution, or transfer of an illegal substance—a
circumstance that is expressly excluded under subsection (i)(d). Because the Nevada
robbery statute does not require proof of an enumerated circumstance under K.S.A. 21-
6811(e)(3)(B)(i) or (ii), Evans argues the plain language of subsection (iii) dictates that
his Nevada conviction be classified as a nonperson offense.

Evans' argument requires statutory interpretation, the guiding principle of which is
to give effect to the Legislature's intent. To determine that intent, courts first look at the
statute's plain language, giving the words their ordinary meaning. If the language is clear
and unambiguous, courts should not look beyond the text or add meaning that does not
appear in the statute. If it is ambiguous, courts turn to canons of construction to resolve
the uncertainty. State v. Gomez, 320 Kan. 3, 13, 561 P.3d 908 (2025).

Based on Evans' argument, the interpretive question is how K.S.A. 21-
6811(e)(3)(B)(i) and (iii) operate together. Specifically, the court must decide whether the
Legislature intended the phrase "is present" in subsection (i) to mean that the mere
mention of a listed circumstance among the elements of the out-of-state statute
automatically makes the conviction a person felony, or whether the phrase should be read
in the context of subsection (iii)'s directive that the elements must "require proof" of a
listed circumstance. As explained below, the plain language of the statutory text reflects
that the Legislature intended subsection (iii) to limit subsection (i): a listed circumstance
must be an essential element of the crime, not just a possible method of committing the
crime.

31
Statutory text and structure

Legislative intent is best discerned from the plain language and overall structure of
the statute. When reading the plain language of K.S.A. 21-6811(e)(3)(B) as a whole, it
becomes clear that the Legislature intended subsections (i) and (iii) to operate in tandem
to define the boundaries for classifying out-of-state convictions.

Subsection (i) identifies specific "person-related" circumstances that, when
required as part of the elements of an out-of-state offense, warrant classification as a
person felony. Subsection (ii) further provides that an out-of-state offense be classified as
a person felony when the elements of the offense necessarily prove that a person was
present during the commission of the offense, excluding persons implicated in the
offense. Subsection (iii), in turn, supplies a limiting principle: unless the elements of the
out-of-state statute require proof of at least one of these enumerated circumstances, the
conviction must be classified as a nonperson felony.

Therefore, subsections (i) and (iii) function as complementary counterparts—
opposite sides of the same coin. Subsection (i) articulates specific qualifying
circumstances that warrant classification of an offense as a person felony, while
subsection (iii) prevents overbroad application of those circumstances. Reading the
provisions together ensures that classification turns on the necessary elements of the out-
of-state offense, not on hypothetical, alternative, or incidental means by which the crime
could be committed.

The suggestion in the separate concurrence that this conclusion requires a prior
finding of ambiguity is wrong. Statutory interpretation begins with text. When employing
a plain language interpretation, courts consider not only the language itself, but also the
specific context in which that language is used and the broader context of the statute as a
whole. In this regard, "the doctrine of in pari materia has utility beyond those instances

32
where statutory ambiguity exists." Bruce v. Kelly, 316 Kan. 218, 224, 514 P.3d 1007
(2022). As we have explained, "[i]t can be used as a tool to assess whether the statutory
language is plain and unambiguous in the first instance, and it can provide substance and
meaning to a court's plain language interpretation of a statute." 316 Kan. at 224.

Indeed, reading these two subsections in isolation would render subsection (iii)
meaningless and undermine the deliberate structure adopted in the 2019 amendments. See
Northern Natural Gas Co. v. ONEOK Field Servs. Co., 296 Kan. 906, 918, 296 P.3d 1106
(2013) (Courts presume the Legislature does not intend to enact useless or meaningless
legislation.). Kansas decisions do not limit the "no meaningless legislation" presumption
to situations in which a statute is first declared ambiguous. Our cases often describe it as
part of the ordinary task of reading text in context. See, e.g., Montgomery v. Saleh, 311
Kan. 649, 655, 466 P.3d 902 (2020) (applying presumption while treating plain language
of the statute as dispositive; rejecting an alternative reading because it would render the
statute meaningless); Northern Natural Gas Co., 296 Kan. at 918 ("[E]ven if the
language of the statute is clear . . . we presume the legislature does not intend to enact
useless or meaningless legislation."); Southwestern Bell Telephone Co. v. Beachner
Const. Co., 289 Kan. 1262, 1269, 221 P.3d 588 (2009) ("'As a general rule, statutes are
construed to avoid unreasonable results. There is a presumption that the legislature does
not intend to enact useless or meaningless legislation.'").

Here, the plain language interpretation brings subsection (i) and (iii) into workable
harmony by giving meaning to both subsections. A court need not manufacture ambiguity
in order to apply a statute as written.

Prior precedent: Busch and Daniels

My interpretation of the plain language in K.S.A. 21-6811(e)(3)(B) aligns with
this court's prior decisions in State v. Busch, 317 Kan. 308, 528 P.3d 560 (2023), and

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State v. Daniels, 319 Kan. 340, 554 P.3d 629 (2024). Evans objected to the classification
of his Nevada robbery conviction at sentencing, so the State had the burden to establish
by a preponderance of the evidence that the out-of-state conviction qualified as a person
felony under Kansas law. See K.S.A. 21-6814(c); Daniels, 319 Kan. at 346 ("As part of
this burden, the State must prove all facts necessary for the district court to make an
accurate classification for all scoreable crimes."). That burden required the State to show
the elements of the Nevada robbery offense required proof of any of the circumstances in
subparagraph (B)(i) or (ii) of K.S.A. 21-6811(e)(3). As this court said in Busch,

"K.S.A. 2022 Supp. 21-6811(e)(3)(B)(iii) clarifies our course when an out-of-
state statute's definitions of a particular element may broadly encompass, but not require,
proof of a particular fact or circumstance: 'An out-of-state conviction . . . for the
commission of a felony offense . . . shall be classified as a nonperson felony if the
elements of the offense do not require proof of any of the circumstances in subparagraph
(B)(i).'" 317 Kan. at 313.

Because the Nevada statute does not require proof that the offender threatened or caused
fear of bodily or physical harm or violence as described in K.S.A. 21-6811(e)(3)(B)(i)(b),
and does not require proof of the presence of a person other than the defendant, a charged
accomplice, or a person engaged with the defendant in a drug transaction as described in
K.S.A. 21-6811(e)(3)(B)(i)(d), the State failed to meet that burden here.

This conclusion accords with constitutional limits on judicial fact-finding. The
State suggests that applying K.S.A. 21-6811(e)(3)(B) through a "necessarily-proved-
circumstance" test could raise concerns under Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Erlinger v. United States, 602 U.S. 821, 144
S. Ct. 1840, 219 L. Ed. 2d 451 (2024). But interpretation of the statute as set forth above
avoids those problems. By restricting the inquiry to the statutory elements of the prior
offense—rather than the facts underlying the conviction—Kansas courts do not engage in

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constitutionally prohibited fact-finding that increases punishment beyond the statutory
maximum.

As in Busch and Daniels, I would hold that the proper classification of an out-of-
state conviction under K.S.A. 21-6811(e)(3)(B) turns on the statutory elements of the
offense, not the underlying facts. When the elements of the out-of-state statute are
broader than the enumerated circumstances in subsections (i) and (ii), it cannot be said
that the statute "require[s] proof" of any of these circumstances; in such case, the
conviction must be scored as a nonperson felony under subsection (iii). Here, the 2001
Nevada robbery statute encompasses conduct that extends beyond the Kansas person-
crime circumstances under K.S.A. 21-6811(e)(3)(B)(i) and (ii). Because the statute's
elements do not require proof of a listed circumstance, Evans' Nevada robbery conviction
must be classified as a nonperson felony. This interpretation gives effect to the statute's
plain language, preserves the limiting function of subsection (iii), and remains consistent
with our reasoning in Busch and Daniels.

For the above reasons, I concur in the judgment reversing the Court of Appeals
and the district court, vacating Evans' sentence, and remanding for resentencing.

ROSEN, C.J., joins the foregoing concurring opinion.

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