State v. Mills ( 2024 )

NOT DESIGNATED FOR PUBLICATION
No. 125,719
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
GOVAN BRANDON MILLS,
Appellant.
MEMORANDUM OPINION
Appeal from Osborne District Court; PRESTON PRATT, judge. Submitted without oral argument.
Opinion filed April 5, 2024. Affirmed in part and dismissed in part.
Darby VanHoutan, of Kansas Appellate Defender Office, for appellant.
Paul S. Gregory, county attorney, and Kris W. Kobach, attorney general, for appellee.
Before ISHERWOOD, P.J., GREEN and PICKERING, JJ.
PER CURIAM: This is the direct appeal of Govan Brandon Mills' criminal
convictions of aggravated domestic battery and aggravated kidnapping with intent to
inflict bodily injury or terrorize the victim. He asserts that there was insufficient evidence
to support his aggravated kidnapping conviction; the district court erred in scoring his
criminal history; and the district court abused its discretion in denying his motion for
departure. After reviewing the record, we affirm Mills' convictions and sentences and
dismiss the issue relating to Mills' departure motion.
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MILLS' ACTIONS LEAD TO HIS ARREST AND CONVICTIONS
After meeting on Facebook, Mills picked up H.M. from her home in Arkansas and
moved her into his house in Osborne, Kansas, on Sunday, November 7, 2021. H.M.
accompanied Mills to his job as a farm worker and sometimes assisted with his job
functions. Mills and H.M. were strictly roommates at first until Tuesday, November 9,
2021, when Mills expressed romantic interest and H.M. agreed. The next day—
Wednesday— H.M. and Mills had an argument after Mills asked H.M. to unblock her
number on his phone but then snatched the phone back from H.M. Later that day, Mills
and H.M. had further altercations, which included Mills pulling H.M. out of his truck and
then trying to drag her back into the truck before choking her.
On Saturday, November 13, 2021, Mills and H.M. got off work, went to the liquor
store, and returned home for dinner. After dinner, Mills and H.M. went to Mills' bedroom
and drank a fifth of Peach Crown and smoked marijuana. During the evening, H.M.
thought about the Wednesday incident and told Mills not to put his hands on her again.
H.M. had told Mills that she experienced abuse in prior relationships. Mills did not
respond; shortly after, he grabbed a backpack and left the house. Mills messaged H.M.
after he left the house telling H.M., "[D]on't start no shit." Mills returned to the house and
went to bed. H.M. opened Mills' bedroom door and entered the room to discuss
Wednesday's incident further. H.M. began talking about the incident without response
from Mills and raised her voice at some point. Mills got out of his bed and began hitting
and kicking H.M. H.M. moved herself out of the bedroom and into the dining room. Mills
followed H.M. into the dining room and began hitting and kicking H.M.'s upper body as
she curled herself up to protect her head. During this, Mills told H.M., "[B]itch, you ain't
got much to say anymore. You got something else to say, you want to say something
else?" as H.M. pleaded for Mills to stop. H.M. testified that Mills choked her at some
point.
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H.M. got up and tried to exit through the front door of the house. She opened the
front door and tried the small lock on the screen door while pushing on the glass, but she
did not open the screen door because it had an extra lock that she did not know about.
Mills and H.M. had always used the back door to enter and exit the house. After H.M.
reached the front door, Mills grabbed her and pulled her back saying, "[B]itch, where the
fuck do you think you're going?" H.M. testified that it was not a light grab because she
was not going back into the house's interior willingly. Mills took H.M. back to the dining
room and continued hitting and kicking her. H.M. got up and ran for the front door a
second time, but the extra lock again prevented her from opening the screen door. Mills
again pulled H.M. back from the door, saying, "[B]itch, where the fuck do you think
you're going," and continued hitting and kicking H.M. As Mills kept striking H.M., he
told her, "[B]itch I'll kill you. I don't care to go back to prison. You ain't got much to say
now, do you?"
Later, Mills ripped off H.M.'s clothes. H.M. told Mills that she needed to use the
restroom. After Mills refused her request, H.M. lost her bowels on the floor. Mills
stopped striking H.M. shortly after that and made H.M. clean up her blood and feces.
Mills then told H.M. to shower and go to his bed. H.M. testified on direct examination
that after she showered, she walked into the kitchen while drying off and, upon seeing
Mills walk out of the kitchen into the dining room, ran out of the back door naked. On
cross-examination, H.M. stated that she was in the bathroom drying off when she saw
Mills walk into the dining room; she then dropped her towel and ran out of the back door.
H.M. eventually entered a neighbor's house through an unlocked door, and the neighbor
contacted police. The record does not indicate that Mills followed H.M. after she ran out
of the back door.
After police arrived at Mills' house, officers noted a scrape on Mills' knuckle,
which he said was caused by farming equipment. Officers also noted blood on Mills'
elbows and foot, which he said came from cleaning up blood in the house. Mills told
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officers that blood found in the house was from H.M. Mills stated he knew nothing about
injuries to H.M.'s throat. Mills admitted to kicking H.M. but said he only kicked her in
her hands as she curled herself up.
H.M.'s medical evaluations showed bruising and swelling on her neck, face, ears,
and upper arms. Megan Meier, a nurse who treated H.M., testified that the bruising on
H.M.'s face and ears tracked with blunt force trauma or strangulation among other
possible causes. H.M. had tenderness on both sides of her ribs, back pain, a bloody nose,
and blood in her ear caused by head trauma. CT scans showed swelling from H.M.'s head
to her lower ribs, along with a broken nose and a punctured lung.
The jury convicted Mills of aggravated domestic battery under K.S.A. 2021 Supp.
21-5414(b)(1) and aggravated kidnapping with intent to inflict bodily injury or terrorize
the victim under K.S.A. 2021 Supp. 21-5408(a)(3), (b).
After the trial, Mills filed a letter wishing to have his trial counsel withdrawn for
ineffective assistance of counsel. He claimed that his trial counsel should have pursued a
mental health disorder defense instead of a voluntary intoxication defense. Mills later
changed his mind about removing his trial counsel. Counsel later filed a motion for a new
trial for pursuing the wrong defense, but the district court summarily dismissed the
motion for being out of time.
Prior to sentencing, Mills moved for either a durational or dispositional departure
to his sentence, which the district court denied. At sentencing, the district court scored
Mills' criminal history as C after including Mills' 2013 felony evasion conviction in
Mississippi as a person felony. Mills filed a motion challenging his criminal history
score, asserting that his Mississippi felony evasion conviction was a nonperson felony
and his criminal history score should have been E. The district court denied the motion,
relying on State v. Hasbrouck, 62 Kan. App. 2d 50, 506 P.3d 924, rev. denied 316 Kan.
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761 (2022), and State v. Baker, 58 Kan. App. 2d 735, 475 P.3d 24 (2020), to conclude
that Mississippi's felony evasion law qualified as a person offense under the revised
Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-6801 et seq.
The district court sentenced Mills to 285 months in prison on the aggravated
kidnapping charge and 13 months in prison on the aggravated domestic battery charge,
with the sentence for the aggravated domestic battery charge to be served consecutive to
the aggravated kidnapping sentence.
MILLS RAISES THREE ISSUES ON APPEAL
I. Sufficient Evidence Supports Mills' Conviction for Aggravated Kidnapping
We review the evidence in a light most favorable to the State when the sufficiency
of the evidence is challenged in a criminal case. In so doing, we "'determine whether a
rational fact-finder could have found the defendant guilty beyond a reasonable doubt.'"
State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021). In our review, we will not
"reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of
witnesses.'" 313 Kan. at 209.
Mills argues that the evidence was insufficient to support his aggravated
kidnapping conviction.
Mills asserts a sufficiency of evidence challenge in three parts. First, he submits
that the State failed to show sufficient evidence of "taking or confining" using force or
threat. Second, Mills argues that the State failed to show sufficient evidence of intent to
inflict bodily injury or terrorize the victim.
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The State responds that sufficient evidence supported the aggravated kidnapping
conviction. It contends that sufficient evidence established a "taking or confining" and
intent to inflict bodily injury or terrorize the victim.
The events here occurred after Mills and H.M. got off work. After dinner, the two
drank Peach Crown and smoked marijuana in Mills' bedroom. At some point, H.M.
wanted to discuss the Wednesday incident, but Mills was not interested in talking about
the incident. Mills left the house and went to bed after returning home. H.M. entered
Mills' bedroom again wanting to discuss the Wednesday incident. Mills then got out of
bed and began hitting and kicking H.M. After H.M. moved into the dining room, Mills
kept hitting and kicking her. During these events, H.M. twice attempted to escape
through the front door of the house. Both times, Mills grabbed her and pulled her back
into the dining room before continuing to hit and kick her.
Eventually Mills stopped hitting and kicking H.M. and told H.M. to shower. After
her shower, H.M. escaped through the back door of the house while Mills was in another
room.
As the State asserts, the facts here are comparable with those in State v. Burden,
275 Kan. 934, 69 P.3d 1120 (2003), where the defendant beat, stripped, raped, and
sodomized the victim in a bathroom. The victim broke free and attempted to run out of
the back door of the kitchen before the defendant caught her, choked her, and forced her
into a bedroom where he threatened to kill her. The Burden court considered those facts
sufficient for a conviction for aggravated kidnapping with intent to inflict bodily injury or
terrorize the victim. 275 Kan. at 944-45. Similarly, here, Mills kicked and hit H.M. as she
twice attempted to escape through the front door of the house. Each time, Mills caught
her, pulled her back into the dining room, and continued hitting and kicking her. Mills
threatened to kill H.M. after the second escape attempt as he continued hitting and
kicking her.
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This case is also akin to State v. Charles, No. 119,346, 2019 WL 3242199 (Kan.
App. 2019) (unpublished opinion). There, the defendant confronted the victim on the
porch, grabbed her hair, and pulled her into the house. He locked the door and shut the
windows. The victim tried to escape through a door in a bedroom before the defendant
caught up and pulled her back. The victim ran for the door again after the defendant left
the bedroom for the living room. The defendant returned to the bedroom, grabbed the
victim, and squeezed her neck. The panel found those facts sufficient to establish
confinement for kidnapping, stating: "Every time [the victim] tried to leave the house,
Charles prevented her from doing so." 2019 WL 3242199, at *6.
These cases first indicate that, here, sufficient evidence allowed a rational fact-
finder to conclude that Mills took or confined H.M. H.M. twice attempted to exit the
house through the front door, and each time Mills grabbed her, pulled her back into the
house's interior, and brought her back to the dining room. H.M. testified that she did not
go back into the house willingly. Mills stopped H.M. each time she tried to leave the
house. Those actions establish confinement.
Following the rationale in the above cases, we find that, in this case, sufficient
evidence allowed a rational fact-finder to conclude that Mills confined H.M. with intent
to inflict bodily injury or to terrorize her. Each time H.M. attempted to escape, Mills
asked her where she thought she was going as he grabbed her and pulled her back. Mills
then continued hitting and kicking H.M. after each escape attempt. After the second
escape attempt, Mills threatened to kill H.M. as he continued hitting and kicking her,
saying that he was not afraid to go back to jail. These facts allow a rational fact-finder to
conclude that when Mills stopped H.M.'s escape attempts, he did it intending to inflict
bodily injury upon or terrorize H.M.
Mills suggests that this case resembles State v. Patterson, 243 Kan. 262, 755 P.2d
551 (1988). There, the victim was in a car with the defendant and one other person when
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the defendant beat the victim and held her against the door as the other person, at the
defendant's command, stabbed the victim. Our Supreme Court found insufficient
evidence of kidnapping because the victim was in the car voluntarily and never asked or
attempted to leave. 243 Kan. at 265.
Patterson, however, is distinguishable. In this case, while H.M. was in the shared
house with Mills voluntarily, she attempted to leave the house multiple times through the
front door. Mills stopped her escape attempts and pulled her back into the interior of the
house. That evidence allows a rational fact-finder to conclude that Mills confined H.M.
There was no such evidence in Patterson.
Mills argues that his aggravated kidnapping conviction and aggravated domestic
battery conviction are multiplicitous.
Before we address Mills' third and final argument, we note that this case illustrates
how the parties' arguments and supporting caselaw may be significantly altered when a
controlling decision issues during the pendency of the appeal.
For his final argument, Mills claims that his aggravated kidnapping conviction and
the aggravated domestic battery conviction are multiplicitous. Mills argues that we
should apply the test under State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976)—as
another panel of this court did in State v. Butler, No. 123,742, 2022 WL 3692866 (Kan.
App. 2022) (unpublished opinion), rev'd 317 Kan. 605, 533 P.3d 1022 (2023). Under this
test, we would be required to use the same facts to prove both the aggravated kidnapping
conviction and the aggravated domestic battery conviction, thus finding that the
convictions are multiplicitous. In other words, he argues that we should use the Butler
panel's Buggs analysis to conclude that the jury used the same facts to convict him of
both crimes.
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The State counters that the Butler panel wrongly contradicted Burden, 275 Kan.
934, in applying the Buggs test and asks us not to follow the Butler decision. The State
submits that the aggravated kidnapping conviction is valid under the "same-elements"
test in State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006), because aggravated
domestic battery and aggravated kidnapping do not have the same elements.
After the parties filed their briefs, the Kansas Supreme Court issued its decision in
State v. Butler, 317 Kan. 605, 606, 533 P.3d 1022 (2023), reaffirming the rule in Burden,
275 Kan. 934, Syl. ¶ 3. The Butler court confirmed that when a defendant is charged with
aggravated kidnapping with intent to inflict bodily injury or terrorize the victim, an
appellate court will review the conviction applying the ordinary sufficiency of the
evidence standard. 317 Kan. at 609. Notably, the Butler court did not apply the three-part
test outlined in Buggs, 219 Kan. at 216, which applies only when a defendant is charged
with aggravated kidnapping with intent to facilitate the commission of another crime.
Butler, 317 Kan. at 609-10.
In light of Butler, we review Mills' conviction of aggravated kidnapping with
intent to inflict bodily injury or terrorize the victim under the normal sufficiency of the
evidence standard and the Schoonover "same-elements" test. See 281 Kan. at 475.
Multiplicity issues are reviewed under the "same-elements" test in Schoonover,
281 Kan. at 495. "Under that test, if one statute requires proof of an element unnecessary
to prove the other offense, then the statutes do not define the same crime and are not
multiplicitous." Butler, 317 Kan. at 611. To repeat what we noted above, the Kansas
Supreme Court's decision in Butler confirms that the Schoonover "same-elements" test
applies for aggravated kidnapping with intent to inflict bodily injury or terrorize the
victim. Butler, 317 Kan. at 611.
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The elements for Mills' aggravated kidnapping conviction are:
(1) Mills took or confined H.M. by force, threat, or deception;
(2) Mills did so with intent to hold H.M. to inflict bodily injury or to terrorize
her;
(3) bodily harm was inflicted upon H.M.; and
(4) this act occurred on or about November 13, 2021.
See K.S.A. 2021 Supp. 21-5408(a)(3), (b); PIK Crim. 4th 54.220 (2019 Supp.).
The elements for Mills' aggravated domestic battery conviction are:
(1) Mills knowingly impeded H.M.'s normal breathing or circulation of blood
by applying pressure to the throat, neck, or chest;
(2) Mills committed this act in a rude, insulting, or angry manner;
(3) Mills and H.M. were family or household members, or were in a dating
relationship; and
(4) this act occurred on or about November 13, 2021.
See K.S.A. 2021 Supp. 21-5414(b)(1); PIK Crim. 4th 54.361 (2019 Supp.).
By comparing these two offenses, we can see that both offenses contain elements
unnecessary to prove the other crime. For instance, the first three elements in aggravated
kidnapping differ greatly from aggravated domestic battery, and the first three elements
of aggravated domestic battery also differ from aggravated kidnapping. Therefore, Mills'
aggravated kidnapping conviction is not multiplicitous with his aggravated domestic
battery conviction.
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We find in the light most favorable to the State that a rational fact-finder could
have found the defendant guilty of both offenses independently beyond a reasonable
doubt.
II. The District Court Did Not Err in Scoring Mills' Criminal History
Mills next argues that the district court erred in determining his criminal history
score. We review this issue under a de novo standard because classification of prior
crimes to determine a criminal history score involves interpretation of the KSGA, which
is a question of law. State v. Bryant, 310 Kan. 920, 921, 453 P.3d 279 (2019).
The Rules That We Follow
In classifying a person's criminal history, out-of-state convictions must be used.
K.S.A. 21-6811(e)(1). If the conviction is a felony in the convicting state, it is counted as
a felony in Kansas. K.S.A. 21-6811(e)(2)(A). A felony is a person felony if any one of a
list of features is present in the elements of the out-of-state conviction. K.S.A. 21-
6811(e)(3)(B)(i)(a)-(h). One of those features is if the elements require "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." K.S.A. 21-6811(e)(3)(B)(i)(d).
In determining whether a prior offense may be used as a person felony in a
person's criminal history, the district court is constitutionally prohibited under Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v.
United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), from making
additional factual findings beyond simply identifying the statutory elements of the
primary offense. State v. Dickey, 301 Kan. 1018, 1038-39, 350 P.3d 1054 (2015).
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Mills Asserts His Mississippi Felony Was Improperly Scored
Mills contends that the district court erred in concluding that his Mississippi
felony evasion conviction required the presence of a person under K.S.A. 21-
6811(e)(3)(B)(i)(d). He argues that the district court erred in including it as a person
crime in Mills' criminal history. Mills suggests that "presence" requires the immediate
presence of another person, not just tangential involvement. He also argues that the
district court made factual findings not based on the explicit elements of the crime to
conclude that a law enforcement officer had to be present when Mills committed the
evasion offense. The State counters that the district court had the correct analysis
comparing this case to Baker and Hasbrouck and including Mills' evasion conviction as a
person felony.
In Baker, the defendant had a prior conviction in Missouri for felony resisting
arrest. The elements for that crime were: (1) The defendant knew a law enforcement
officer was making an arrest or stop of a person or vehicle, (2) the defendant resisted the
arrest or stop by fleeing from the officer, (3) the defendant did so with the purpose of
preventing the officer from completing the arrest or stop, and (4) the defendant fled in a
manner creating a substantial risk of serious physical injury or death to any person. The
panel in Baker concluded that those elements required the presence of a person other than
the defendant, a charged accomplice, or another person engaged in certain drug sales
under K.S.A. 2019 Supp. 21-6811(e)(3)(B)(i)(d). An officer had to be present during the
crime because the officer had to attempt an arrest or stop, the defendant had to flee from
the officer, and the officer would not be the defendant, an accomplice, or another person
participating in drug dealings. Baker, 58 Kan. App. 2d at 743, 745-46.
The Hasbrouck panel approvingly noted the Baker panel's conclusion that
arresting officers satisfy the "presence of a person" requirement while concluding that
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Missouri's first-degree burglary statute qualified as a person offense. Hasbrouck, 62 Kan.
App. 2d at 56-57.
With that in mind, we turn to the elements of Mills' Mississippi conviction for
felony evasion, which are:
(1) A law enforcement officer gave a visible or audible signal to stop by hand,
voice, or emergency lights, and
(2) Mills failed to stop in a way indicating reckless or willful disregard for the
safety of persons or property or operated his vehicle in a way manifesting
extreme indifference to the value of human life.
See Miss. Code Ann. § 97-9-72 (2013); Williams v. State, 126 So. 3d 85, 91 (Miss. Ct.
App. 2013).
While Mills does not state that Baker was incorrectly decided, he does argue that a
person could violate Mississippi's felony evasion statute in a way that does not satisfy the
"presence of a person" requirement in K.S.A. 2021 Supp. 21-6811(e)(3)(B)(i)(d). He
asserts this can be done when a person flees an officer altogether or when the officer
giving the signal to stop is an undercover officer with whom the defendant engages in the
sale, distribution, or transfer of a controlled or noncontrolled substance.
A different panel considered a similar contention in State v. Shaffer, No. 125,452,
2023 WL 5163294 (Kan. App. 2023) (unpublished opinion), petition for rev. filed
September 8, 2023. In Shaffer, the defendant argued that Baker was incorrectly decided
and that Missouri's felony resisting arrest statute was not a person felony. The defendant
submitted that a defendant could violate the Missouri statute without satisfying Kansas'
"presence of a person" requirement if the defendant heard from others that officers were
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on their way to make an arrest and fled before the officers arrived, or if the arresting
officer engaged in an undercover drug deal with the defendant.
The Shaffer panel found the first hypothetical unpersuasive because it required
speculation by the defendant that officers were coming where the statute required
knowledge of an attempted arrest. The panel rejected the second hypothetical because
Missouri's resisting arrest elements mentioned nothing about drug transactions or
conspiracies, nor did they require the presence of an accomplice or other party to a drug
transaction. It also concluded that adopting the second hypothetical would render the
"presence of a person" provision meaningless because by the defendant's reasoning, a
person could commit nearly any crime against someone with whom they were previously
involved in a drug transaction. 2023 WL 5163294, at *3. The panel also noted that while
a drug offense involving an undercover officer would not be a person crime, the
subsequent flight from the undercover officer is a separate crime which would qualify as
a person crime. 2023 WL 5163294, at *4.
We agree with the Hasbrouck, Baker, and Shaffer panels and find that the district
court did not err in classifying Mills' Mississippi felony evasion conviction as a person
felony. Therefore, the district court did not erroneously score Mills' criminal history as C.
III. We Lack Jurisdiction to Consider the Denial of Mills' Motion for Departure
Mills argues the district court abused its discretion when it denied his motion for
departure. Prior to sentencing, Mills moved for either a dispositional or durational
departure for his aggravated kidnapping and aggravated domestic battery sentences. Mills
claimed that he had mental health disorders and that trial counsel had overestimated his
criminal history score as A or B, which was the basis for him pursuing a jury trial rather
than accepting a plea. The district court denied the motion and sentenced Mills to the
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aggravated sentences in each presumptive gridbox for his aggravated kidnapping and
aggravated domestic battery convictions.
Under the KSGA, appellate courts lack jurisdiction to consider challenges to the
denial of motions for departure from presumptive sentences. K.S.A. 21-6820(c)(1); State
v. Farmer, 312 Kan. 761, 764, 480 P.3d 155 (2021). The KSGA defines "'presumptive
sentence'" as "the sentence provided in a grid block for an offender classified in that grid
block by the combined effect of the crime severity ranking of the offender's current crime
of conviction and the offender's criminal history." K.S.A. 21-6803(q). The aggravated
sentence in the applicable grid block is considered a presumptive sentence. State v.
Williams, 298 Kan. 1075, 1080, 319 P.3d 528 (2014). Thus, we lack jurisdiction to
review the district court's denial of Mills' motion for a sentencing departure.
To conclude, we find that there was sufficient evidence to support Mills'
aggravated kidnapping conviction, which was not multiplicitous with his aggravated
domestic battery conviction. We also find that the district court did not err when scoring
Mills' out-of-state evasion conviction as a person felony. And finally, we dismiss Mills'
challenge to the district court's denial of his dispositional or durational departure for lack
of jurisdiction.
Affirmed in part and dismissed in part.
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