A Kansas State University graduate from Missouri’s 2020 aggravated criminal sodomy conviction was upheld by the Kansas Court of Appeals, according to an unpublished opinion of the court filed February 18, 2021.

Devonta D. Bagley was sentenced to 24 years in prison in 2020 after being found guilty of the sexual assault as well as aggravated burglary stemming from a 2017 incident after a Sigma Chi Fraternity toga party in Manhattan. Bagley was charged with sneaking into a room in the fraternity house and performing oral sex on a sleeping male victim without their consent after the party concluded. While awaiting his 2020 trial, Bagley was also found guilty and sentenced to two life sentences with possibility of parole stemming from two sex crimes in Missouri.

According to the opinion, Bagley’s counsel argued that his conviction be reversed due to numerous errors it alleged of the proceedings in Riley County District Court. Prosecutors also cross-appealed for Bagley to be re-sentenced, arguing the district court should not have granted Bagley’s challenge to his criminal history score — under which he was scored as having committed nonperson crimes related to his Missouri charges due to differences in law between the states.

Appellate justices found no reversible error in the proceedings upon review and affirmed the Belton man’s convictions and sentence.

The crime occurred in the early morning hours of September 9, 2017, following a K-State football game versus the University of North Carolina at Charlotte on September 8. The victim awoke at 6 a.m. to find Bagley assaulting him in the suite he shared with two other men. The victim testified to pushing Bagley off of him and telling him to get out of his bunk before returning to sleep. Having been drinking the prior day, the victim questioned if he had dreamed the assault and checked the fraternity’s video security system before contacting Riley County police.

In the three-day trial Bagley claimed the act was consensual and arranged on Tinder or Snapchat prior to that evening, also that a woman was present and participated in a threesome with the duo — which the victim denied. Bagley was sentenced for the crimes on April 27, 2020.

On appeal, Bagley argued the district court presided over by Judge Grant Bannister made four errors warranting reversing the two convictions. One error they alleged was in allowing the prosecution to introduce ‘evidence of prior consistent statements’ the victim made through the testimony of his roommates and a police officer, bolstering his testimony.

Appellate justices indicated that this is reviewed for abuse of discretion, which is substantiated if a ruling is arbitrary, fanciful or unreasonable; based on an error of law; or based on an error of fact. They found the testimony did not unfairly corroborate the testimony of the victim, instead acting as ‘substantive evidence of the victim’s state of mind.’

“In addition, the testimony also established why the roommates reviewed the fraternity house’s security video and why the Riley County Police Department opened a criminal investigation. Thus, we conclude that the district court did not abuse its discretion because the testimony in question had sufficient probative value to be admitted into evidence[.]”

Bagley’s counsel further argued the district court should not have allowed the introduction of evidence related to his Missouri prosecution, specifically cell phone evidence, noting a prior agreement with the State. They claimed the evidence was subject to an order in limine, a pretrial motion that excludes evidence from consideration in a trial, and the prosecution should not have been able to call into question Bagley’s motivation behind deleting messages from that evening while not deleting sexually explicit photos on his device collected during investigation of his charges in Missouri.

Appellate justices write that Bagley filed such a motion, though noted the order only excluded the evidence if the Defendant does not testify in a way that ‘opens the door to the admission of said evidence.’ They further acknowledge that K.S.A. 2020 Supp. 60-455 pertains to ‘evidence that a person committed a crime or civil wrong’ and not to evidence not constituting civil wrongs.

“[I]n its limited inquiry of Bagley regarding the photos found on his cell phone, the State did not mention the Missouri criminal investigation or cases. It simply asked if there were “sexually graphic photos of naked men that weren’t deleted” and Bagley acknowledged that there were. This limited inquiry did not delve into whether Bagley had committed a prior crime or civil wrong. Likewise, the limited inquiry did not reference any criminal acts or civil wrongs committed in Missouri.”

Bagley also argued that prosecutors ‘prejudiced his right to a fair trial’ in closing arguments by making a logically fallacious “straw man” argument by suggesting that the girlfriend of the victim’s roommate was the woman who was alleged to have participated in a threesome with Bagley and the victim — as Bagley never testified that was the same woman.

Appellate justices found the argument used by the prosecution fair and based on evidence and inferences drawn from evidence presented at trial.

“It was Bagley’s defense that a woman was there when he entered the sleeping room and together they performed oral sex on [the victim]. The State had the right to respond to this defense by pointing to the evidence regarding the only woman in the room at the time and her denial that she did not get into A.G.’s bed or perform oral sex on him.”

They further rejected Bagley’s claims of a ‘golden rule’ argument during closing and found no ‘reasonable probability’ that the verdict was swayed by the State mistakenly claiming in closing statements that Bagley testified ‘he never had sexual encounters at his own fraternity house.’ Given only one error was found to have occurred upon review, appellate justices concluded no cumulative error in the case.

The State also failed on cross-appeal to secure a re-sentencing for Bagley, arguing that the district court should not have granted the Defendant’s challenge to his criminal history score. The court noted a ‘logical disconnect’ in considering certain crimes, such as rape and sodomy, as nonperson crimes under a legal test that requires out-of-state crimes be correlated to existing Kansas crimes in order to criminal history scores only if the law is ‘identical or narrower’ to the one on the books in Kansas.

“However, we simply do not have any indication that the Supreme Court is departing from Wetrich at this point in time.”

The State asked that Missouri’s felony first degree sodomy laws be compared to Kansas’ misdemeanor battery statute instead, though the Court of Appeals claimed that ‘—would only create another legal fiction because the two statutes proscribe vastly different types of criminal conduct.’

“[W]e find no error in the district court’s classification of Bagley’s Missouri convictions as nonperson felonies for the purposes of determining his criminal history score as it currently exists. For the same reason, we also find no error in the district court not applying the aggravated habitual sexual offender statute—K.S.A. 2017 Supp. 21-6626(a)—when sentencing Bagley. Accordingly, we affirm Bagley’s convictions as well as his sentence.”

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