State v. Mills

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NOT DESIGNATED FOR PUBLICATION

No. 114,989

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

REX WILLIAM ALLEN MILLS,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed February 3, 2017.
Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Anna M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., GREEN, J., and BURGESS, S.J.

Per Curiam: After pleading no contest to breach of privacy, Rex William Allen
Mills appeals his conviction arguing the district court did not have subject matter
jurisdiction because the complaint failed to allege an essential element of breach of
privacy. Mills also argues the district court violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution when it used his prior
convictions to increase his sentence without proving those convictions to a jury beyond a
reasonable doubt. We affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

On May 5, 2015, the State charged Mills with breach of privacy. The complaint
alleged Mills installed or used a camera to videotape, film, photograph, or record B.R.H.
and L.H. in a state of undress without their consent or knowledge with the intent to
invade their privacy. According to the probable cause affidavit, B.R.H. located a spy
camera in the bathroom of the residence he and his wife, L.H., shared with Mills. B.R.H.
also located an SD card in Mills' bedroom containing videos of L.H. changing her clothes
in their bedroom.

Mills pleaded no contest to breach of privacy. The district court sentenced Mills to
19 months' imprisonment. Mills timely appeals.

ANALYSIS

Mills argues the district court did not have subject matter jurisdiction to convict
him because the complaint omitted an essential element of breach of privacy. For
support, Mills relies on State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966), overruled by
State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016), which held the charging document
must allege every essential element of a crime in order to confer jurisdiction upon the
courts. However, while Mills' case was on appeal, the Kansas Supreme Court overruled
Minor in Dunn, stating:

"Charging documents do not bestow or confer subject matter jurisdiction on state courts
to adjudicate criminal cases; the Kansas Constitution does. Charging documents need
only show that a case has been filed in the correct court, e.g., the district court rather than
municipal court; show that the court has territorial jurisdiction over the crime alleged;
and allege facts that, if proved beyond a reasonable doubt, would constitute a Kansas
crime committed by the defendant." 304 Kan. at 811.

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As a general rule, a decision overruling precedent is applied to all similar cases
pending as of the date of the overruling decision. State v. Nguyen, 281 Kan. 702, 715, 133
P.3d 1259 (2006). Since the Kansas Constitution confers jurisdiction to adjudicate
criminal cases, not the charging document, the district court had jurisdiction to convict
Mills.

State's Complaint

Dunn recognizes three types of charging document defects, but none of these
defects prevents or destroys the existence of a district court's or appellate court's subject
matter jurisdiction over the criminal case. 304 Kan. at 815-16. Since each of the defects
involves the interpretation of statutes, constitutional provisions, and/or written
instruments, the standard of review for such challenges raised on appeal is de novo. 304
Kan. at 819.

The Dunn court held challenges to charging documents should be raised before the
district court to preserve the issue and, if not raised below, the defendant must
demonstrate an exception to the preservation rule. 304 Kan. at 818-19. The Kansas
Supreme Court has identified three exceptions to the preservation rule:

"(1) The newly asserted theory involves only a question of law arising on proved or
admitted facts and is determinative of the case; (2) consideration of the theory is
necessary to serve the ends of justice or to prevent the denial of fundamental rights; and
(3) the district court is right for the wrong reason." State v. Phillips, 299 Kan. 479, 493,
325 P.3d 1095 (2014).

As Dunn was filed after Mills submitted his brief, he does not identify an
exception to the preservation rule in his brief. In addition, Mills has not identified an
exception to the preservation rule in a letter of additional authority pursuant to Kansas
Supreme Court Rule 6.09 (2015 Kan. Ct. R. Annot. 53). As such, Mills has not preserved
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the issue. However, in State v. Rist, No. 113,173, 2016 WL 4161309, at *9 (Kan. App.
2016) (unpublished opinion), petition for rev. filed September 6, 2016, a panel of this
court addressed the merits of this issue despite the lack of preservation because, "due to
the timing of our Supreme Court's decision in Dunn, Rist was not aware of the
application of Rule 6.02(a)(5) in a defective complaint challenge." Like the panel in Rist,
this panel will address the merits of Mills' argument despite his failure to identify an
exception to the preservation rule.

In Dunn, the Kansas Supreme Court

"identified three possible types of charging document insufficiency a criminal defendant
may challenge. First, either a district or appellate court may be asked to decide whether
the document shows that the Kansas constitutional minimums of correct court and correct
territory are met. Second, a court may be asked to evaluate whether the document alleges
facts about the intent and action on the part of the defendant that, if proved beyond a
reasonable doubt, would constitute violation of a Kansas criminal statute. And, third, a
court may be asked to determine whether the charging document meets federal and state
constitutional standards for due process and notice, such that the defendant has an
opportunity to meet and answer the State's evidence and prevent double jeopardy." 304
Kan. at 815.

Mills alleges the second type of error—failing to allege facts that describe a
Kansas crime. This both impairs the invocation of jurisdiction and risks constitutional
due process and notice issues, and requires earlier correction unless the issue is not
preserved for review. 304 Kan. at 816-17. This type of error is subject to a harmlessness
analysis under K.S.A. 2015 Supp. 60-261. 304 Kan. at 817.

In Dunn, the defendant was convicted of forgery for knowingly issuing or
delivering a check made in violation of K.S.A. 21-3710. On appeal, Dunn argued the
forgery count did not allege an intent to defraud, an essential element of forgery. The
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Kansas Supreme Court concluded the State failed to charge forgery. 304 Kan. at 821.
However, the Kansas Supreme Court concluded the failure to include an intent to defraud
was harmless because Dunn and his trial counsel "clearly understood exactly what the
State sought to prove on Count 8." 304 Kan. at 821.

Here, the State concedes it failed to include an essential element of breach of
privacy because it did not allege Mills filmed B.R.H. and L.H. under circumstances in
which they had a reasonable expectation privacy. However, this failure was harmless.
First, the probable cause affidavit was filed at the same time as the complaint. The
affidavit indicates a spy camera was pointed at the shower B.R.H. and L.H. used and
videos of L.H. changing her clothes in her bedroom were found on an SD card in Mills'
bedroom. Second, the probable cause affidavit is also included with the plea documents.
Finally, at the plea hearing, Mills indicated he read the complaint, understood the charges
against him, told his attorney everything which could have caused the charges to be filed
against him, and discussed the nature of the State's evidence. Mills also indicated he
discussed any legal or factual defenses he might have with his counsel. Clearly, Mills
understood what the State sought to prove for breach of privacy. The defective complaint
did not impair his substantial right to a fair trial and was harmless.

Sentence Increased Based on Criminal History

Mills argues the district court violated his rights under the Sixth and Fourteenth
Amendments to the United States Constitution when it used his prior convictions to
increase his sentence without proving those convictions to a jury beyond a reasonable
doubt. Pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000), any fact that increases the maximum penalty a defendant may receive
must be proved to a jury beyond a reasonable doubt. However, Mills acknowledges the
Kansas Supreme Court rejected this argument in State v. Ivory, 273 Kan. 44, 46-48, 41
P.3d 781 (2002). This court is duty bound to follow established precedent unless there is
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some indication the Kansas Supreme Court is departing from its prior holding. State v.
Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). There is no indication the
Kansas Supreme Court is departing from its holding in Ivory; therefore, the district court
properly used Mills' criminal history to establish his sentence.

Affirmed.