Kansas Classifies Nevada Robbery (NRS 200.380 [1995]) as Nonperson Unless Its Elements Require Fear of Bodily Harm or a Qualifying “Person Present” Circumstance

1. Introduction

State v. Evans (Kan. 2026) concerns how Kansas courts must classify an out-of-state felony as a person or nonperson offense when calculating criminal history under the Kansas Sentencing Guidelines. The appellant, Bert Everett Evans, pleaded no contest in Kansas to nonresidential burglary. His presentence investigation (PSI) report scored a prior 2001 Nevada robbery conviction under Nev. Rev. Stat. § 200.380 (1995) as an adult person felony, producing a criminal history score of C.

Evans objected at sentencing, arguing the Nevada conviction must be classified as a nonperson felony under K.S.A. 21-6811(e)(3)(B) (the 2019 elements-based out-of-state classification scheme). The district court overruled the objection and imposed a 27-month prison sentence (suspended to probation). The Court of Appeals affirmed in an unpublished decision, State v. Evans, No. 127,467, 2025 WL 396983 (Kan. App. 2025). The Kansas Supreme Court granted review and reversed, holding the Nevada robbery must be scored as nonperson.

Key Issues

  • Whether the elements of Nev. Rev. Stat. § 200.380 (1995) “require proof” of any person-related circumstance listed in K.S.A. 21-6811(e)(3)(B)(i) or (ii), or instead fall into the default rule in K.S.A. 21-6811(e)(3)(B)(iii).
  • Who bears the burden of proof on person/nonperson classification when the defendant objects at sentencing.

2. Summary of the Opinion

The Kansas Supreme Court held that Evans’ 2001 Nevada robbery conviction must be classified as a nonperson felony for Kansas criminal history purposes because the Nevada statute:

  1. Permits robbery by fear of injury to property, not necessarily fear of bodily or physical harm or violence under K.S.A. 21-6811(e)(3)(B)(i)(b); and
  2. Requires the presence of “another” person but does not require that the person be a qualifying “person present” as narrowly defined in K.S.A. 21-6811(e)(3)(B)(i)(d) (excluding, among others, a charged accomplice or a person in a drug transaction with the defendant).

Because the elements of the Nevada offense do not “require proof” of a listed circumstance, classification defaults to K.S.A. 21-6811(e)(3)(B)(iii) (nonperson). The court also emphasized that because Evans objected at sentencing, the State bore the burden to establish the classification.

The court reversed the Court of Appeals and district court, vacated the sentence, and remanded for resentencing.

3. Analysis

A. Precedents Cited

1) Statutory interpretation framework

  • State v. Gomez, 320 Kan. 3, 13, 561 P.3d 908 (2025): The court restated Gomez’s plain-language-first approach. Evans uses that method to read K.S.A. 21-6811(e)(3)(B) as an elements-based scheme that turns on what the out-of-state statute requires, not what it could include.
  • State v. Griffin, 312 Kan. 716, 720, 479 P.3d 937 (2021) (cited in concurrence): Invoked to underscore that canons and extratextual tools are used only if the text is unclear—though the concurrences disagree about whether the “shall” commands create ambiguity.
  • Bruce v. Kelly, 316 Kan. 218, 224, 514 P.3d 1007 (2022) (cited in concurrence): Used to justify reading related provisions together (in pari materia) even at the “plain language” stage.
  • State v. Keel, 302 Kan. 560, 574, 357 P.3d 251 (2015) and Northern Natural Gas Co. v. ONEOK Field Servs. Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013) (cited in concurrence): Canon against surplusage—avoid interpretations that render statutory provisions meaningless.

2) Kansas out-of-state classification under the 2019 amendments

  • State v. Busch, 317 Kan. 308, 528 P.3d 560 (2023): Busch applied the 2019 elements-based test. It held New Jersey burglary was nonperson because its element (“structure”) was broader than the Kansas circumstance (“residence, dwelling or habitation”). Evans extends Busch’s core idea: if the out-of-state elements encompass conduct beyond the enumerated Kansas circumstances, the conviction defaults to nonperson under K.S.A. 21-6811(e)(3)(B)(iii).
  • State v. Daniels, 319 Kan. 340, 554 P.3d 629 (2024): Daniels reaffirmed Busch and discussed burdens under K.S.A. 21-6814, explaining when the State’s burden is satisfied by a defendant’s admission and when later challenges shift burdens. Evans uses Daniels primarily for the procedural point: because Evans objected at sentencing, the State had to prove the facts necessary for the person/nonperson classification.

3) Burden of proof for criminal history scoring

  • State v. Roberts, 314 Kan. 316, 322, 498 P.3d 725 (2021): Cited in Daniels; reinforces that the State bears the fundamental burden to prove criminal history at sentencing.
  • State v. Corby, 314 Kan. 794, 797, 502 P.3d 111 (2022): Interprets K.S.A. 21-6814 and how admissions to a PSI can satisfy the State’s burden in certain contexts; in Evans, the defendant did not admit the classification—he objected—so the State’s burden remained.

4) The concurrences’ debate about ambiguity, “shall,” and federal frameworks

  • Schmidt v. Trademark, Inc., 315 Kan. 196, 204, 506 P.3d 267 (2022) and State v. Raschke, 289 Kan. 911, 914-15, 219 P.3d 481 (2009) (Biles concurrence): Used to argue that identical “shall” commands in (i) (person) and (iii) (nonperson) can collide, creating ambiguity.
  • State v. Horn, 288 Kan. 690, Syl. ¶ 3, 206 P.3d 526 (2009) (Biles concurrence): Rule of lenity as a tie-breaker when sentencing provisions conflict.
  • Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Descamps v. United States, 570 U.S. 254, 264, n.2, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), Mathis v. United States, 579 U.S. 500, 518, n.7., 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016), and Erlinger v. United States, 602 U.S. 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024): Raised chiefly to argue about constitutional limits on judicial fact-finding and the proper role (if any) of divisibility analysis in Kansas classification disputes.
  • State v. Dickey, 301 Kan. 1018, 1038-39, 350 P.3d 1054 (2015), State v. Rodriguez, 305 Kan. 1139, 1154, 390 P.3d 903 (2017), State v. Hill, No. 112,545, 2018 WL 1239126 (Kan. 2018) (unpublished opinion), State v. Gensler, 308 Kan. 674, 685, 423 P.3d 488 (2018), State v. Schrader, 308 Kan. 708, 712-13, 423 P.3d 523 (2018), and State v. Gales, 312 Kan. 475, 485-86, 476 P.3d 412 (2020): Discussed by Justice Biles to argue Daniels (and parts of Busch) misused the federal divisibility framework in a state-law classification setting. Justice Standridge, by contrast, defended Busch/Daniels as consistent with an elements-only approach and as avoiding unconstitutional fact-finding.

B. Legal Reasoning

1) The statutory mechanism: K.S.A. 21-6811(e)(3)(B)

The court treated the 2019 amendments as an elements-based sorting rule: out-of-state felonies are person felonies only if their elements include (“require proof of”) one of the enumerated person-related circumstances in K.S.A. 21-6811(e)(3)(B)(i) or the person-presence rule in (ii). Otherwise, K.S.A. 21-6811(e)(3)(B)(iii) commands nonperson classification.

2) Application to Nevada robbery: breadth defeats “require proof”

The Nevada statute defined robbery as taking property “by means of force or violence or fear of injury, immediate or future, to his or her person or property,” including injury to the person or property of family or anyone in the victim’s company. The Court of Appeals reasoned that robbery necessarily corresponds to circumstances like fear/violence and a person present. The Supreme Court rejected that “by definition” approach because it ignores the Nevada statute’s full sweep.

(a) K.S.A. 21-6811(e)(3)(B)(i)(b): fear of bodily/physical harm or violence

Kansas requires that the out-of-state elements “require proof” of “threatening or causing fear of bodily or physical harm or violence” (and related conduct). But Nevada robbery can be committed by fear of injury to property. Because a conviction can rest on property injury fear, the Nevada elements do not require bodily/physical harm fear in every case; therefore the (i)(b) circumstance is not an element-required circumstance for this statute.

(b) K.S.A. 21-6811(e)(3)(B)(i)(d): “presence of a person” with exclusions

Kansas’s “presence of a person” circumstance is narrow: the qualifying person cannot be the defendant, a charged accomplice, or a person engaged with the defendant in the sale/distribution/transfer of a controlled or non-controlled substance. Nevada robbery requires the presence of “another” but does not cabin who that person may be; the victim could be an accomplice or a participant in a drug transaction. Because Nevada does not require the Kansas-excluded-person limitation as an element, Nevada robbery fails (i)(d) as well.

3) Burden of proof: objection at sentencing keeps the burden on the State

A central procedural holding is that when a defendant objects to the classification at sentencing, “the State bears the burden to establish criminal history by a preponderance of the evidence under K.S.A. 21-6814(c).” The opinion relies on Daniels’ explanation that the State must prove “all facts necessary” for accurate classification when the issue is properly contested. Because Evans timely objected, the State could not rely on mere assumptions about robbery’s nature; it had to show the Nevada elements required a listed person circumstance—which it could not.

C. Impact

1) Practical sentencing consequences for robbery and other broad out-of-state statutes

Evans is a caution against “label-based” reasoning (e.g., “robbery is violent, so it’s person”). If the foreign statute is drafted broadly—such that a conviction can be obtained without proving the Kansas-enumerated circumstance— Kansas courts must score it as nonperson under K.S.A. 21-6811(e)(3)(B)(iii). For Nevada robbery under Nev. Rev. Stat. § 200.380 (1995), the decision strongly signals that person classification is generally unavailable absent a different statutory version or a different Kansas enumerated circumstance that the statute truly requires.

2) Reinforcing the “require proof” limitation

The decision reinforces the critical statutory word-choice in (iii): “do not require proof.” That language forces courts to focus on what must be proven to convict under the out-of-state statute, not what might be true in a particular case.

3) Litigation effects: evidentiary preparation and objections

Because Evans highlights the State’s burden when classification is contested, prosecutors should expect to litigate the precise out-of-state statutory elements and, where legally relevant, the specific statutory alternative of conviction. Defense counsel, in turn, are incentivized to object early, preserving the State’s burden at sentencing.

4) Doctrinal pressure from concurrences

Justice Biles (joined in part by Justice Wall) suggests the statute contains textual ambiguity due to competing “shall” commands, argues for applying in pari materia/lenity to resolve it, and urges reconsideration of State v. Busch, 317 Kan. 308, 528 P.3d 560 (2023) and State v. Daniels, 319 Kan. 340, 554 P.3d 629 (2024). Justice Standridge responds that the scheme is coherent when read as a whole and that Busch/Daniels remain consistent with an elements-based approach. This split signals possible future litigation over (i)–(iii)’s structure, how “require proof” interacts with “is present,” and whether Kansas should revisit the role of “divisibility” analysis in state sentencing.

4. Complex Concepts Simplified

  • Person vs. nonperson felony (Kansas criminal history): A “person” felony generally increases criminal history severity more than a “nonperson” felony, affecting the guideline sentence.
  • Elements-based test: Courts look to what the prosecution must prove to obtain a conviction under the statute (the “elements”), not what happened in the defendant’s specific case.
  • “Require proof” vs. “could include”: If a statute allows conviction in multiple ways and some ways do not involve a Kansas-listed person circumstance, then the statute does not “require proof” of that circumstance.
  • Preponderance of the evidence: The State’s burden at sentencing when the issue is contested—more likely than not.
  • In pari materia / surplusage / lenity (raised in concurrences): Tools for resolving statutory problems: read related provisions together (in pari materia), avoid interpretations that make text meaningless (surplusage), and resolve lingering penal ambiguity in favor of the defendant (lenity).
  • Divisible statute / modified categorical approach (debated in concurrences): A “divisible” statute lists alternative elements creating multiple crimes. Some frameworks permit consulting a limited record to identify which alternative applied. The concurrences dispute how, and whether, those federal concepts should matter in Kansas’s person/nonperson scheme after the 2019 amendments.

5. Conclusion

State v. Evans cements a strict application of the 2019 out-of-state classification rules: when a defendant objects at sentencing, the State must prove—by a preponderance—that the out-of-state statute’s elements require proof of an enumerated person-related circumstance under K.S.A. 21-6811(e)(3)(B)(i) or (ii. Nevada robbery under Nev. Rev. Stat. § 200.380 (1995) is too broad to meet that requirement because it can be committed by fear of injury to property and because its “presence” requirement does not match Kansas’s narrowly defined qualifying-person requirement. The Nevada conviction therefore defaults to nonperson under K.S.A. 21-6811(e)(3)(B)(iii), requiring resentencing.

Beyond Evans himself, the opinion’s significance lies in its insistence that sentencing classification is controlled by statutory necessity (“require proof”), not offense labels or generalized assumptions about violence—while the concurrences highlight unresolved tensions that may invite future clarification from either the court or the Legislature.