State v. Phillips ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,612
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TYLER A. PHILLIPS,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; JENNIFER ORTH MYERS, judge. Opinion filed September
4, 2020. Sentence vacated and case remanded with directions.
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Kayla L. Roehler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., GREEN and BUSER, JJ.
PER CURIAM: Tyler A. Phillips appeals the sentences imposed for his convictions
of attempted aggravated robbery and criminal threat. Phillips contends the district court
erred by classifying his prior 2012 Missouri conviction for resisting arrest as a person
felony when calculating his criminal history score. Upon our review, we hold that
Phillips' Missouri conviction for resisting arrest was incorrectly scored as a person
felony. Accordingly, we vacate the sentence and remand with directions to resentence
Phillips with a correct criminal history score.
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FACTUAL AND PROCEDURAL BACKGROUND
On August 28, 2018, Phillips pled guilty to attempted aggravated robbery and
criminal threat. A presentence investigation (PSI) report calculated Phillips' criminal
history score as C, based in part on a 2012 Missouri conviction for resisting arrest being
classified as a person felony. Before sentencing, Phillips filed an objection to his criminal
history score, arguing that his Missouri conviction for resisting arrest should be classified
as a nonperson felony. The State filed a response, claiming the PSI report accurately
classified the Missouri conviction as a person felony.
At sentencing, Phillips and the State continued their dispute over whether the
Missouri conviction for resisting arrest should be classified as a person or nonperson
felony. For its part, the State argued that the Missouri conviction was comparable to the
Kansas offenses of battery or battery against a law enforcement officer. The district court
reviewed the 2012 Missouri complaint and found that Phillips was convicted of resisting
arrest by using physical force against a law enforcement officer. As a result, the district
court determined that the Missouri conviction was comparable to either a Kansas battery
or battery against a law enforcement officer and, thus, was properly classified as a person
felony for sentencing purposes. Utilizing a criminal history score of C, the district court
sentenced Phillips to a controlling term of 57 months in prison.
Phillips timely appealed his sentences.
ANALYSIS
On appeal, Phillips contends the district court erred by classifying his prior
Missouri conviction for resisting arrest as a person felony when calculating his criminal
history score. He argues that the conviction should have been classified as a nonperson
felony because the elements of the Missouri crime are broader than the elements of a
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Kansas battery or battery of a law enforcement officer. The classification of prior
offenses for criminal history purposes involves statutory interpretation, which presents a
question of law subject to unlimited review. State v. Wetrich, 307 Kan. 552, 555, 412
P.3d 984 (2018).
Under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2019 Supp.
21-6801 et seq., a defendant's presumptive sentence is based on two controlling factors:
the defendant's criminal history and the severity level of the crime committed. K.S.A.
2019 Supp. 21-6804(c). Criminal history scores range from I (no criminal history or one
misdemeanor) to A (three or more person felonies). See K.S.A. 2019 Supp. 21-6809;
K.S.A. 2019 Supp. 21-6804(a). A defendant's criminal history includes all the defendant's
adult felony convictions, felony juvenile adjudications, and certain misdemeanor
convictions and adjudications. K.S.A. 2019 Supp. 21-6810(a), (d).
When calculating a defendant's criminal history score, the district court classifies
convictions (1) as a felony or misdemeanor and (2) as a person or nonperson offense.
K.S.A. 2019 Supp. 21-6810(a). The KSGA weighs felonies more heavily than
misdemeanors, and they result in higher presumptive sentences. The KSGA also weighs
person offenses more heavily than nonperson offenses. See State v. Keel, 302 Kan. 560,
574-75, 357 P.3d 251 (2015).
When Phillips was sentenced, Kansas classified an out-of-state conviction as a
person or nonperson offense by referring to the comparable offense under the Kansas
Criminal Code in effect when the current crime of conviction was committed. K.S.A.
2016 Supp. 21-6811(e)(3). If the Kansas Criminal Code does not have a comparable
offense, the out-of-state conviction is classified as a nonperson crime. K.S.A. 2016 Supp.
21-6811(e)(3). In Wetrich, our Supreme Court held that for a Kansas crime to be a
comparable offense, "the elements of the out-of-state crime cannot be broader than the
elements of the Kansas crime. In other words, the elements of the out-of-state crime must
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be identical to, or narrower than, the elements of the Kansas crime to which it is being
referenced." 307 Kan. at 562. Since the district court sentenced Phillips after the Wetrich
decision, the identical-or-narrower test applies to whether his Missouri conviction for
resisting arrest should be classified as a person or nonperson offense. See State v. Weber,
309 Kan. 1203, Syl. ¶ 3, 442 P.3d 1044 (2019).
The PSI report shows that Phillips was convicted on June 4, 2012, of "Resisting
arrest/detention/stop by fleeing-creating a [substantial risk] of serious [injury/death to]
any person." The Missouri statute states:
"1. A person commits the crime of resisting . . . arrest, detention, or stop if,
knowing that a law enforcement officer is making an arrest, or attempting to lawfully
detain or stop an individual or vehicle, or the person reasonably should know that a law
enforcement officer is making an arrest or attempting to lawfully detain or lawfully stop
an individual or vehicle, for the purpose of preventing the officer from effecting the
arrest, stop or detention, the person:
(1) Resists the arrest, stop or detention of such person by using or threatening the
use of violence or physical force or by fleeing from such officer." Mo. Rev. Stat. §
575.150.1 (2009).
The statute further provides that resisting arrest is a felony offense if the "person
fleeing creates a substantial risk of serious physical injury or death to any person." Mo.
Rev. Stat. § 575.150.
In summary, the basic elements of resisting arrest under Mo. Rev. Stat. § 575.150are: (1) The defendant knew that a law enforcement officer was making an arrest or a
stop of a person or vehicle; (2) the defendant resisted the arrest or stop by using, or
threatening to use, violence or physical force or by fleeing from the officer; and (3) the
defendant did so with the purpose of preventing the officer from completing the arrest or
stop. State v. Jones, 479 S.W.3d 100, 109 (Mo. 2016). A conviction under Mo. Rev. Stat.
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§ 575.150 is elevated to a felony when the defendant attempts to flee an arrest in a way
that creates "a substantial risk of serious physical injury or death to any person." Mo.
Rev. Stat. § 575.150.5.
The district court found that Phillips' conviction for resisting arrest by using
physical force was comparable to the Kansas crime of battery against a law enforcement
officer or, alternatively, simple battery. Battery includes "knowingly causing physical
contact with another person when done in a rude, insulting or angry manner." K.S.A.
2016 Supp. 21-5413(a)(2). Battery against a law enforcement officer is a battery against a
"uniformed or properly identified state, county or city law enforcement officer . . . while
such officer is engaged in the performance of such officer's duty." K.S.A. 2016 Supp. 21-
5413(c)(1)(B). Both battery and battery against a law enforcement officer are person
misdemeanor offenses. K.S.A. 2016 Supp. 21-5413(g)(1), (g)(3)(A).
On appeal, Phillips argues that his Missouri conviction for resisting arrest by using
physical force is broader than these Kansas crimes because the Missouri statute does not
require the physical force to be applied to another person or law enforcement officer.
Phillips claims:
"The fact that the Missouri statute does not identify or restrict the object of the
defendant's application of force to another human being establishes that the elements of a
Missouri resisting arrest statute in effect at the time Mr. Phillips committed the offense in
the present case were broader than the Kansas elements of battery of a law enforcement
officer."
The State responds that the use of physical force necessary to support a Missouri
conviction for resisting arrest must be directed against an officer. Moreover, because the
Missouri crime requires the defendant to physically contact another person, the Missouri
crime is identical to, or narrower than, a Kansas battery.
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Missouri courts, however, have rejected the State's position that the use of physical
force needed to support a Missouri conviction for resisting arrest must be directed against
an officer. State v. Miller, 172 S.W.3d 838, 845-46 (Mo. App. 2005). For example, the
Miller court determined that evidence suggesting the defendant grabbed a steering wheel
to prevent officers from removing her from the vehicle was sufficient to show that she
resisted arrest by using physical force. 172 S.W.3d at 845-46. Similarly, in State v. Shipp,
125 S.W.3d 358, 361 (Mo. App. 2004), the court found a defendant resisted arrest with
physical force by pulling his hand away and struggling while an officer attempted to
place him in handcuffs. And another Missouri court held that a defendant used physical
force to resist arrest by merely stiffening his body as an officer tried to pull him from a
car. State v. Belton, 108 S.W.3d 171, 174-75 (Mo. App. 2003).
While Phillips' Missouri conviction for felony resisting arrest also required the
State to show that he created a substantial risk of serious physical injury or death, one can
envision hypothetical situations where a person uses physical force to resist arrest without
causing physical contact to another person and also creating a substantial risk of serious
physical injury or death. For example, a person may resist arrest by grabbing a steering
wheel and the officer attempting to remove the defendant from the vehicle falls into
oncoming traffic, thus creating a substantial risk of serious physical injury or death.
In summary, since a Missouri conviction for resisting arrest does not require the
offender to physically contact another person, the elements of Phillips' Missouri
conviction are broader than the elements of the Kansas crimes of battery or battery of a
law enforcement officer. Accordingly, the district court erred by finding that a Kansas
battery or battery of a law enforcement was comparable to Phillips' Missouri conviction.
The State also presents an alternative argument. It contends the district court
correctly scored Phillips' Missouri conviction for resisting arrest as a person offense
because it is comparable to the Kansas crime of endangerment under K.S.A. 2016 Supp.
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21-5429. Endangerment is defined as "recklessly exposing another person to a danger of
great bodily harm or death." K.S.A. 2016 Supp. 21-5429(a). Endangerment is classified
as a person offense. K.S.A. 2016 Supp. 21-5429(b). The State argues that the Kansas
crime of endangerment is comparable to Phillips' Missouri conviction for resisting arrest
because the Missouri crime required proof that Phillips resisted arrest in a manner that
created a substantial risk of serious physical injury or death to another person.
Although the State focuses on the similarity between placing another in "great
bodily harm" and "serious physical injury," it fails to consider that Kansas' endangerment
statute requires the defendant to act recklessly while the Missouri statute requires no
mental culpable state in creating a risk of injury or death. Compare K.S.A. 2016 Supp.
21-5429(a) with Mo. Rev. Stat. § 575.150.5 (2009); United States v. Dunning, 666 F.3d
1158, 1166 (8th Cir. 2012) (noting the Missouri statute has "no mens rea requirement
related to the risk of injury").
Our Supreme Court has found that Kansas crimes requiring reckless conduct are
not comparable to out-of-state crimes requiring a lesser culpable mental state. See State v.
Ewing, 310 Kan. 348, 357-59, 446 P.3d 463 (2019); State v. Rodriguez, 305 Kan. 1139,
1154, 390 P.3d 903 (2017) (Colorado crime requiring a defendant to act with criminal
negligence is not comparable to a Kansas offense that requires the defendant to act
recklessly.). As a result, the Kansas crime of endangerment is not comparable to Phillips'
Missouri crime of felony resisting arrest.
In conclusion, a person may use physical force to resist arrest in violation of Mo.
Rev. Stat. § 575.150 without knowingly causing physical contact to another person. As a
result, Phillips' Missouri conviction is broader than the Kansas crimes of battery under
K.S.A. 2016 Supp. 21-5413(a)(2) and battery against a law enforcement officer under
K.S.A. 2016 Supp. 21-5413(c)(1)(B). Additionally, a Missouri conviction for felony
resisting arrest may occur if the offender negligently, or without any culpable mental
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state, creates a substantial risk of serious physical injury or death to another person.
Because the Kansas crime of endangerment under K.S.A. 2016 Supp. 21-5429 requires
reckless conduct, the Missouri crime is also broader than the Kansas crime of
endangerment. Since the elements of Missouri's resisting arrest statute are broader than
the elements of these Kansas crimes, the State has identified no Kansas person offense
comparable to Phillips' prior Missouri conviction. As a result, the Missouri conviction
should have been classified as a nonperson offense.
The district court erred by scoring Phillips' 2012 Missouri conviction for resisting
arrest as a person felony when calculating his criminal history score. Accordingly, we
vacate Phillips' sentence and remand for resentencing with directions to classify his prior
Missouri conviction for resisting arrest as a nonperson felony when calculating his
criminal history score.
Sentence vacated and case remanded for resentencing with the correct criminal
history score.
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