State v. McCray: Excluding Third-Party Liability Theories from Out-of-State Conviction Comparability Under the Kansas Sentencing Guidelines

I. Introduction

In State v. McCray, No. 125,798 (Kan. Dec. 12, 2025), the Kansas Supreme Court addressed a recurring and technically complex issue in Kansas sentencing law: how to classify an out-of-state conviction as a “person” or “nonperson” offense when computing a defendant’s criminal history score under the Kansas Sentencing Guidelines Act (KSGA) for crimes committed before the 2019 amendments to K.S.A. 21-6811.

The specific question was narrow but important: when Kansas courts decide if an out-of-state conviction is “comparable” to a Kansas person offense under the pre-2019 version of K.S.A. 21-6811(e), must they consider not only the elements of the out-of-state offense of conviction, but also the out-of-state statute that makes a defendant liable for the acts of another (e.g., aiding and abetting or accountability statutes)?

The defendant, Xavier Lee McCray, had a prior Illinois conviction for aggravated discharge of a firearm under 720 Ill. Comp. Stat. 5/24-1.2(a)(4). When Kansas sentenced him in 2022 for crimes he committed in 2016, the sentencing court treated that Illinois conviction as a person felony by comparing it to Kansas’ crime of criminal discharge of a firearm, K.S.A. 2015 Supp. 21-6308(a)(1)(B).

McCray did not argue that the Illinois substantive firearm statute was broader than the Kansas statute. Instead, he argued that because the Illinois charging document alleged he was liable for the acts of a co-defendant under Illinois’ broad third-party accountability statute, the “elements” of the Illinois conviction—viewed together with that accountability statute—were broader than Kansas’ aiding and abetting framework. Therefore, he contended, the Illinois conviction should be scored as a nonperson offense under the pre-2019 comparability rule.

The Kansas Supreme Court rejected this argument. It held that for pre–May 23, 2019 crimes, the comparability analysis under K.S.A. 2015 Supp. 21-6811(e)(3) (as interpreted in State v. Wetrich) focuses on the elements of the offense of conviction, not on the theory of third-party liability that may have supported that conviction. As a result, Illinois’ aggravated discharge of a firearm under 720 Ill. Comp. Stat. 5/24-1.2(a)(4) is “comparable” to Kansas’ criminal discharge of a firearm at an occupied motor vehicle, K.S.A. 2015 Supp. 21-6308(a)(1)(B), and is scored as a person felony.

II. Summary of the Opinion

A. Parties and Procedural Posture

The State of Kansas prosecuted Xavier Lee McCray for crimes committed in February 2016. He ultimately pled guilty to:

  • Unlawful possession of a controlled substance, and
  • Criminal possession of a firearm by a convicted felon.

McCray’s sentencing in Kansas was delayed until 2022 because he was serving a sentence in Illinois. Before sentencing, the Kansas presentence investigation (PSI) report identified a prior Illinois conviction for aggravated discharge of a firearm and classified it as a person felony. That classification drove his criminal history score to category “B,” thereby increasing his presumptive sentence under the KSGA grid.

McCray objected, arguing:

  • The Illinois aggravated discharge charge alleged that he was accountable for acts of a co-defendant under Illinois’ third-party liability/“common design” theory; and
  • Illinois’ third-party liability standard is broader than Kansas’ aiding and abetting framework, so the “elements” of his Illinois conviction were broader than those of the comparable Kansas offense.

The district court rejected this argument and classified the Illinois offense as a person felony by comparing only the substantive firearm statute (720 Ill. Comp. Stat. 5/24-1.2(a)(4)) with Kansas’ criminal discharge statute (K.S.A. 2015 Supp. 21-6308(a)(1)(B)). It concluded the Illinois statute was narrower than (and thus “comparable” to) the Kansas statute and sentenced McCray accordingly:

  • 34 months for the drug offense, and
  • 8 months for criminal possession of a firearm by a felon,

to be served consecutive to his Illinois prison sentence.

A unanimous Court of Appeals panel affirmed. The panel held that third-party liability (aiding and abetting or its analogues) is not a separate crime in either Illinois or Kansas; rather, it is a mechanism for attributing liability for the underlying substantive offense. Because McCray’s conviction was for aggravated discharge of a firearm, that was the statute the Kansas sentencing court had to compare—nothing more.

McCray petitioned for review, which the Kansas Supreme Court granted.

B. Syllabus Holdings

The Court’s syllabus distills the decision into two key propositions:

  1. Pre-2019 comparability rule. For crimes committed before May 23, 2019 (when K.S.A. 21-6811 was amended), sentencing judges must classify an out-of-state conviction as:
    • A nonperson crime if there is no comparable Kansas offense; and
    • A person crime if there is a comparable Kansas offense that the Legislature has designated as a person crime,
    using the Wetrich test: the out-of-state offense is “comparable” if its elements are identical to or narrower than the Kansas offense.
  2. Specific comparability holding. Illinois’ aggravated discharge of a firearm (720 Ill. Comp. Stat. 5/24-1.2(a)(4)) is comparable to Kansas’ criminal discharge of a firearm at an occupied motor vehicle (K.S.A. 2015 Supp. 21-6308(a)(1)(B)), a person felony. Therefore, that Illinois conviction must be scored as a person offense when calculating a Kansas criminal history score for a crime committed before May 23, 2019.

C. Core Holding on Third-Party Liability

The central doctrinal holding, which gives this case its significance, is implicit in the Court’s reasoning:

When classifying an out-of-state conviction under the pre-2019 KSGA comparability framework, a Kansas sentencing court looks to the elements of the statute of conviction—not to the out-of-state theories of third‑party liability (such as aiding and abetting or accountability) that may have been used to prove that offense.

The Kansas Supreme Court therefore affirmed the Court of Appeals and the district court. McCray’s Illinois conviction remains a person felony for Kansas sentencing purposes, and his criminal history score of B stands.

III. Detailed Analysis

A. Statutory and Doctrinal Framework

1. The Kansas Sentencing Guidelines Act (KSGA)

The KSGA establishes a grid-based system for imposing presumptive sentences. Each crime of conviction is located on:

  • A vertical axis (severity level of the current offense), and
  • A horizontal axis (the defendant’s criminal history score, driven by prior felony person and nonperson convictions).

The presumptive sentence is the term located at the intersection of those two axes. Because person felonies are weighted more heavily than nonperson felonies, how a prior conviction is classified (person vs nonperson) can substantially alter the sentence.

For out-of-state convictions, K.S.A. 2015 Supp. 21-6811(e) governed how they were to be counted in 2016, when McCray committed his Kansas offenses. At that time, subsection (e)(3) stated:

“In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to.”

If Kansas had no comparable offense, the out-of-state conviction was to be scored as a nonperson offense.

2. The Wetrich “identical-or-narrower” comparability test

The statute did not define “comparable,” so in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), the Kansas Supreme Court supplied a test:

  • A prior out-of-state conviction is “comparable” to a Kansas offense only if the out-of-state statute’s elements are identical to or narrower than the Kansas statute’s elements.
  • If the out-of-state statute is broader, then the conviction is not comparable and must be treated as a nonperson offense.

This is an “elements-based” approach: courts compare statutes on paper, rather than the actual facts of the prior case. In State v. Samuels, 313 Kan. 876, 492 P.3d 404 (2021), the Court reaffirmed Wetrich for crimes committed before the May 23, 2019 amendments to the KSGA.

In 2019, the Legislature amended K.S.A. 21-6811 and removed the “comparable-offense” language for future crimes. As explained in State v. Baker, 58 Kan. App. 2d 735, 475 P.3d 24 (2020), this effectively changed how out-of-state convictions are classified for crimes committed after May 23, 2019. But for defendants like McCray, whose current Kansas crimes were committed in 2016, the Wetrich rule still applies.

3. The relevant statutes in McCray

The prior Illinois conviction at issue is for aggravated discharge of a firearm under 720 Ill. Comp. Stat. 5/24-1.2(a)(4), which criminalizes shooting in the direction of:

“[A] vehicle known to be occupied by a peace officer, a person summoned or directed by a peace officer, a correctional institution employee or a fireman while the officer, employee or fireman is engaged in the execution of any of his or her official duties, or to prevent the officer, employee or fireman from performing his or her official duties, or in retaliation for the officer, employee or fireman performing his or her official duties.”

The Kansas statute chosen as the comparator is K.S.A. 2015 Supp. 21-6308(a)(1)(B), which makes it a crime to:

Recklessly or knowingly discharge a firearm at an occupied motor vehicle.

Kansas’ statute applies to any occupied vehicle containing a human being, without restricting the type of occupant. Illinois’ statute is more limited: it applies only when the vehicle is occupied by a peace officer, a person directed by a peace officer, a correctional institution employee, or a fireman engaged in official duties or in retaliation for those duties.

McCray ultimately conceded at oral argument that the Illinois aggravated discharge statute is narrower than Kansas’ criminal discharge statute. Under a straightforward Wetrich analysis, this would make the Illinois offense “comparable” and thus a person felony.

The crux of his argument therefore shifted: he contended that the Illinois accountability statute—which made him liable for his codefendant’s acts in furtherance of a common criminal design—had to be folded into the comparability analysis as an additional source of elements that, when combined with the discharge statute, rendered the Illinois conviction broader than Kansas law.

B. Precedents Cited and Their Role

1. State v. Wetrich, 307 Kan. 552 (2018)

Wetrich is the cornerstone of Kansas’ modern comparability analysis. The Court there adopted the identical-or-narrower rule for determining whether an out-of-state conviction is comparable to a Kansas offense under K.S.A. 21-6811(e)(3).

In McCray, the Court relies on Wetrich for two key propositions:

  • The focus is squarely on the elements of the statutes, not the underlying facts.
  • If the out-of-state statute is narrower than the Kansas comparator statute, it qualifies as a person offense when the Kansas comparator is designated as a person felony.

2. State v. Samuels, 313 Kan. 876 (2021)

Samuels confirms that Wetrich remains operative for crimes committed before the 2019 amendment to K.S.A. 21-6811. The Court in McCray cites Samuels to:

  • Confirm that the Wetrich test applies to McCray’s 2016 offenses, notwithstanding the Legislature’s later statutory change, and
  • Emphasize that the analysis is backward-looking to the law in effect at the time of the current crime, not at sentencing.

3. State v. Smith, 309 Kan. 929 (2019)

Smith is cited primarily for the proposition that interpreting the KSGA—and determining the proper categorization of prior convictions—is a question of law subject to unlimited review. This underscores that the Kansas Supreme Court owes no deference to the district court or Court of Appeals on the legal question of comparability.

4. State v. Baker, 58 Kan. App. 2d 735 (2020)

The Court of Appeals’ decision in Baker is cited to explain the 2019 amendments to K.S.A. 21-6811 and the removal of the comparability language. Its relevance in McCray is contextual: it confirms that comparability and Wetrich still matter for pre-2019 crimes (including McCray’s), even though the statutory framework has changed for later offenses.

5. State v. Bodine, 313 Kan. 378 (2021) and State v. Maxwell, 234 Kan. 393 (1983)

These two decisions are cited for a fundamental principle of Kansas criminal law:

“Aiding and abetting is not a separate crime in Kansas. Instead, it extends criminal liability to a person other than the principal actor.” (Bodine.)
“It is well settled that all participants in a crime are equally guilty without regard to the extent of their participation, and that any person who counsels, aids, or abets in the commission of an offense may be charged, tried and convicted in the same manner as though he were a principal.” (Maxwell.)

These cases ground the Court’s key reasoning that third‑party liability is not itself a separate “crime” or set of elements. It is merely a doctrinal vehicle for extending liability for the underlying offense. This is pivotal to rejecting McCray’s argument that liability “theories” must be considered in comparability analysis.

6. State v. Larsen, 317 Kan. 552 (2023) and State v. Fleming, 308 Kan. 689 (2018)

Larsen and Fleming provide general canons of statutory interpretation applied by the Court:

  • Larsen: Courts ascertain legislative intent through the ordinary meaning of the language used in the statute.
  • Fleming: The Legislature is presumed to know existing law, including judicial interpretations and related legal doctrines.

In McCray, these canons support the conclusion that because K.S.A. 2015 Supp. 21-6811 speaks of “comparable offenses” and says nothing about liability theories, courts should not read into the statute a requirement to examine aiding and abetting or accountability doctrines as distinct “elements” in the comparability test.

C. The Court’s Legal Reasoning

1. Standard of Review

The Court treated the classification of the Illinois conviction as a question of law involving statutory interpretation of the KSGA. Accordingly, review is unlimited—no deference is given to the district court or Court of Appeals on the ultimate legal question.

2. Applying Wetrich to the substantive firearm statutes

The Court began by identifying the controlling statutory framework:

  • K.S.A. 2015 Supp. 21-6811(e)(3) requires Kansas courts to refer to comparable Kansas offenses to determine whether an out-of-state conviction is a person or nonperson crime.
  • Under Wetrich, comparability is satisfied if the out-of-state offense’s elements are identical to or narrower than the Kansas offense.

As to the statutes actually defining the offense of conviction:

  • The Illinois statute criminalizes shooting toward a vehicle occupied by specified categories of public safety personnel or related actors engaged in their official duties or in retaliation for those duties.
  • The Kansas statute criminalizes discharging a firearm at any occupied vehicle containing a human.

Given this, the Court confirmed what McCray had already conceded: Illinois’ aggravated discharge statute is narrower than Kansas’ criminal discharge statute. Accordingly, at the level of the substantive offense, the Illinois conviction is “comparable” to a Kansas person felony.

3. McCray’s theory: accountability as an “element” expanding the statute

Having lost the pure elements comparison, McCray advanced a more intricate argument:

  • The Illinois charging document alleged that his codefendant’s acts were “undertaken in furtherance of a common criminal design or agreement by each defendant, acting together and in concert with each other and being legally accountable to each other.”
  • This language invokes Illinois’ accountability/third-party liability statute, which McCray argued is broader than Kansas’ aiding and abetting law (for example, possibly in its treatment of foreseeability, mens rea, or the breadth of “common design”).
  • Because the Illinois accountability statute is supposedly broader than Kansas’ aiding-and-abetting framework, he argued that the Illinois conviction as a whole—substantive statute plus accountability doctrine—was broader than the Kansas offense and thus not “comparable.”

Notably, the Illinois judgment of conviction itself identified only:

  • The offense: aggravated discharge of a weapon (“agg discharge”); and
  • The statutory citation: 720 Ill. Comp. Stat. 5/24-1.2(a)(4).

It did not reference the accountability statute or any theory of third-party liability. McCray relied primarily on the charging document to frame his argument.

4. The Court’s rejection of the accountability-based comparability argument

The Kansas Supreme Court rejected McCray’s argument for three main reasons.

(a) The text of K.S.A. 21-6811 speaks of “offenses,” not “liability theories”

The Court returned to first principles of statutory interpretation, citing Larsen:

“We interpret statutes to discern legislative intent using the ordinary meaning of the words the Legislature used.”

K.S.A. 2015 Supp. 21-6811(e)(3) speaks in terms of “comparable offenses” and contains no language at all about:

  • Aiding and abetting,
  • Accountability, or
  • Other theories or principles of third-party liability.

The Court emphasized that this omission is meaningful. The statute directs courts to compare crimes—i.e., statutes defining criminal offenses—not the doctrinal mechanisms by which liability can be attributed among participants in those offenses.

McCray offered nothing in the statutory language or legislative history to contradict this reading, and the Court found none.

(b) In Kansas, third-party liability is not a separate crime

Relying on Bodine and Maxwell, the Court explained that in Kansas:

  • Aiding and abetting (or related theories of participation) is not a distinct substantive offense.
  • Rather, it is a framework that extends liability for the underlying crime to those who counsel, aid, or abet its commission.
  • All participants in a crime are “equally guilty” regardless of the extent of their participation and may be charged, tried, and convicted as though they were principals.

Put differently, a Kansas conviction for, say, aggravated battery, does not encode within itself whether the defendant was the principal or an aider and abettor. The crime of conviction is the aggravated battery, and that is what matters for purposes like scoring criminal history.

The Court implicitly treated Illinois similarly: its accountability provisions do not create a separate “accountability crime”; they simply extend liability for the substantive offense—here, aggravated discharge of a firearm. Thus, the Court refused to treat accountability as an “element” in the comparability analysis.

(c) Presumption that the Legislature knew this structure and chose not to mention liability theories

Citing Fleming, the Court observed that the Legislature is presumed to know:

  • Existing law, including the doctrinal structure that treats aiding and abetting as non-independent of the substantive offense; and
  • How Kansas courts have been applying the KSGA and scoring prior convictions.

If the Legislature had intended sentencing courts to:

  • Investigate and compare out-of-state theories of liability (such as accountability or accomplice liability), and
  • Factor those theories into the person/nonperson classification,

it could have said so explicitly in K.S.A. 21-6811(e). Instead, it spoke only of “comparable offenses” and left theories of liability unmentioned. The Court declined to add words to the statute that the Legislature did not include.

Accordingly, the Court held that the KSGA does not require—and, by implication, does not permit—sentencing courts to expand comparability analysis beyond the elements of the offense of conviction to include third- party liability doctrines.

D. Impact and Future Significance

1. Clarifying the scope of comparability analysis under Wetrich

McCray significantly clarifies the reach of the Wetrich “identical-or-narrower” test. It confirms that:

  • The “elements” under consideration are only those of the offense-defining statute (here, aggravated discharge of a firearm), and
  • Courts must not import into that elements-comparison:
    • Aiding and abetting provisions,
    • Accountability statutes, or
    • Other third-party liability doctrines
    as if they were additional elements.

Practically, this means that defense efforts to reclassify out-of-state convictions as nonperson crimes by focusing on differences in accomplice liability frameworks between Kansas and other jurisdictions are unlikely to succeed, at least under the pre-2019 KSGA framework.

2. Consequences for defendants with out-of-state convictions

Defendants whose prior convictions involved:

  • Joint participants,
  • Conspiracy-like “common design” accountability provisions, or
  • Broader accomplice liability standards in other states,

will not be able to use those differences in liability doctrine to argue that their out-of-state convictions should be scored as nonperson offenses. The inquiry remains tightly focused on:

  1. What offense does the judgment of conviction actually list?
  2. What are the statutory elements of that offense?
  3. Are those elements identical to or narrower than the Kansas comparator statute?

If the answer to (3) is yes, and the Kansas comparator is a person felony, the out-of-state conviction will be scored as a person felony—regardless of whether the defendant acted as a principal, an accomplice, or was found guilty under a broad accountability rationale.

3. Doctrinal stability for pre-2019 offenses despite statutory amendment

McCray also underscores that Wetrich continues to govern for offenses committed before May 23, 2019. The Legislature’s 2019 removal of the comparability language in K.S.A. 21-6811 does not retroactively alter how courts must classify out-of-state convictions for earlier crimes.

This stability matters in ongoing resentencings, collateral attacks, and other proceedings involving older cases, where the scope of criminal history scoring remains heavily litigated.

4. Broader implications for how Kansas conceptualizes “aiding and abetting”

Although McCray is technically about sentencing, it reinforces a broader doctrinal point: in Kansas, theories like aiding and abetting are:

  • Not independent crimes,
  • Not separate elements of a substantive offense, and
  • Not typically relevant when the law looks to the “crime of conviction” for collateral or sentencing purposes.

This conceptualization may influence other areas of law, such as:

  • Double jeopardy analysis (where the “same offense” test looks to elements),
  • Collateral consequences that depend on the name or type of conviction, and
  • Future statutory interpretation questions where litigants attempt to elevate theories of participation to the level of independent offenses.

5. Uniform treatment of participants in prior crimes

By refusing to distinguish between principals and accessories for criminal history purposes, McCray promotes a consistent principle already reflected in Kansas law:

“All participants in a crime are equally guilty without regard to the extent of their participation.”

This means:

  • A defendant whose out-of-state conviction rests on aiding and abetting is treated the same for Kansas sentencing purposes as someone who personally pulled the trigger or personally committed the burglary.
  • The criminal history score reflects the substantive nature of the prior offense (e.g., violent firearm crime) rather than the defendant’s exact role or the subtleties of the other state’s accountability rules.

IV. Complex Concepts Simplified

1. Person vs Nonperson Felonies

Under the KSGA, crimes are classified as either:

  • Person crimes: Generally involving actual or threatened harm to a person (e.g., robbery, aggravated battery, certain firearm offenses).
  • Nonperson crimes: Typically property, regulatory, or drug offenses that do not inherently involve direct personal harm (e.g., theft, drug possession).

Prior person felonies increase a defendant’s criminal history score more dramatically than nonperson felonies, leading to longer presumptive sentences. Thus, whether an out-of-state conviction is treated as a person or nonperson crime can add years to a sentence.

2. Criminal History Score

Kansas assigns a criminal history category (A through I, with A being the most serious) based primarily on:

  • The number of prior felony convictions, and
  • Whether those priors are person or nonperson felonies (and, for some purposes, misdemeanors).

A single violent person felony from another state can move a defendant into a higher criminal history category, significantly increasing the grid-based sentence.

3. “Elements” vs “Facts” vs “Theories of Liability”

It is crucial to distinguish:

  • Elements: The specific components the prosecution must prove beyond a reasonable doubt to obtain a conviction (e.g., that the defendant intentionally discharged a firearm at an occupied vehicle).
  • Facts: The real-world details of what happened (e.g., time, place, identity of participants, which person actually fired the weapon).
  • Theories of liability: Legal doctrines explaining why a defendant can be held liable for an offense (e.g., as a principal, as an aider and abettor, under a conspiracy or accountability theory).

In the Wetrich-type comparability analysis embraced in McCray, Kansas courts look only at:

  • The elements in the statute defining the offense of conviction.

They do not look at:

  • The particular facts of the defendant’s prior conduct, or
  • The theory of liability (e.g., aiding and abetting, accountability).

4. Aiding and Abetting / Accountability

In many jurisdictions, including Kansas and Illinois, there are statutes or common-law rules that allow a person to be convicted of a crime even if they did not personally perform every element of the offense, so long as they:

  • Assisted, encouraged, or counseled the principal actor, or
  • Participated in a “common design” or shared plan that led to the offense.

Key point in Kansas: Aiding and abetting is not a separate crime. A person convicted under an aiding-and-abetting theory is convicted of the underlying offense itself (e.g., aggravated robbery), not of “aiding and abetting aggravated robbery” as a separate crime.

In McCray, the defendant tried to treat Illinois’ accountability statute as if it added independent “elements” to the offense of aggravated discharge of a firearm. The Kansas Supreme Court rejected that move, holding that such liability theories are not part of the “offense” for comparability purposes.

5. Why the 2019 Amendment Matters but Does Not Control Here

In 2019, the Legislature amended K.S.A. 21-6811 and removed the explicit comparability language in subsection (e)(3). That amendment:

  • Changes how out-of-state convictions are classified for crimes committed on or after May 23, 2019.
  • Does not apply retroactively to sentencing for crimes committed before that date.

Because McCray’s Kansas offenses occurred in February 2016, the Court properly applied the pre-2019 statutory scheme and the Wetrich test, as reinforced in Samuels.

V. Conclusion: Significance of State v. McCray

State v. McCray solidifies a key principle in Kansas sentencing law for pre-2019 offenses:

When determining whether an out-of-state conviction is “comparable” to a Kansas person offense under the pre-amendment KSGA, Kansas courts look only to the elements of the statute defining the offense of conviction. They do not consider the out-of-state theories of third-party liability (such as aiding and abetting or accountability) that may have been used to secure that conviction.

Applying this rule, the Kansas Supreme Court held that Illinois’ aggravated discharge of a firearm under 720 Ill. Comp. Stat. 5/24-1.2(a)(4) is narrower than, and therefore comparable to, Kansas’ criminal discharge of a firearm at an occupied motor vehicle under K.S.A. 2015 Supp. 21-6308(a)(1)(B), a person felony. Consequently, McCray’s Illinois conviction is properly scored as a person felony, and his criminal history score of B was correctly calculated.

Beyond its direct impact on McCray, the decision:

  • Clarifies the boundaries of the Wetrich comparability test by excluding third-party liability theories from the analysis.
  • Reaffirms that aiding and abetting is not a separate crime in Kansas and that all participants in an offense are treated equally for purposes of conviction and sentencing.
  • Provides doctrinal stability and guidance for courts handling pre-2019 cases where out-of-state convictions must still be classified under the older comparability framework.

As a precedent, McCray will likely limit future challenges that attempt to exploit differences in accomplice liability doctrines across jurisdictions to obtain nonperson classification for serious out-of-state convictions. The case thereby strengthens the consistency and predictability of Kansas sentencing practices where prior out-of-state violent offenses are involved.