State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1458

State of Minnesota,
Respondent,

vs.

Zackery Charles Nathan Mills,
Appellant.

Filed May 13, 2019
Affirmed in part, reversed in part, and remanded
Bjorkman, Judge

Redwood County District Court
File No. 64-CR-17-399

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Jenna M. Peterson, Redwood County Attorney, Redwood Falls, Minnesota (for
respondent)

Steven P. Groschen, Kohlmeyer Hagen Law Office, Chtd., Mankato, Minnesota (for
appellant)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his convictions of criminal vehicular homicide and criminal
vehicular operation, arguing that the evidence was insufficient to establish his driving

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conduct was grossly negligent . Ap pellant also challenges his sentence . We affirm
appellant’s convictions and the denial of a downward sentencing departure. But because
the record does not support appellant’s criminal -history score, we reverse in part and
remand for resentencing.
FACTS
On June 2, 2017, appellant Zackery Mills was driving a commercial semi-truck with
an empty 48-foot flatbed trailer southbound on County State Aid Highway (CSAH) 7. He
had four years’ experience as a commercial driver but had not previously driven on that
highway. Mills was driving approximately 65 miles per hour, ten miles per hour above the
posted speed limit, and conversing with his passenger.
As Mills approached the intersection with CSAH 4, several markers warned him to
stop. Approximately 950 fee t from the intersection, he drove over somewhat worn but
functional “rumble strips.” Approximately 775 feet from the intersection, he passed a
yellow “Stop Ahead” sign. Approximately 500 fee t from the intersection, he drove over
additional “rumble strips.” And he passed a standard red “Stop” sign just before the
intersection. Mills failed to observe any of these markers —or the Tahoe traveling
westbound on CSAH 4 toward the intersection.
Mills did not apply the brakes at all as he entered the intersection and crashed into
the passenger side of the Tahoe. The impact lifted the Tahoe into the air, after which it
rolled at least twice before coming to rest upside -down 80 to 100 yards southwest of the
intersection. The Tahoe’s OnStar device called 911. Emerge ncy responders transported
the Tahoe’s driver and rear passenger to the local hospital, where they were treated for

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numerous bruises and fractures. The front passenger was airlifted to North Memorial,
where significant neurological damage and cardiac arrest led to his death.
Mills was charged with criminal vehicular homicide, two counts of criminal
vehicular operation, and failing to stop at a stop sign. After a bench trial, the district court
found Mills guilty o f all offenses and sentenced him to 58 mon ths’ imprisonment. Mills
appeals.
D E C I S I O N
I. Sufficient evidence supports Mills’s convictions.
When considering a challenge to the sufficiency of the evidence, we view the record
in a light most favorable to the conviction and will not disturb the verdict if the fact-finder,
“acting with due regard for the presumption of innocence and the requirement of proof
beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty
of the charged offense.” State v. Dorn, 887 N.W.2d 826, 830 (Minn. 2016). This standard
applies to both bench trials and jury trials. Id.
To convict Mills of criminal vehicular homicide or operation, the state was required
to prove that he operated a motor vehicle “in a grossly negligent manner.” Minn. Stat.
§§ 609.2112, subd. 1, .2113, subd. 1(1) (2016). Mills contends that his essentially
undisputed driving conduct was merely negligent, not grossly negligent.
Whether conduct constitutes gross negligence is a question for the trier of fact. State
v. Al-Naseer, 690 N.W.2d 744, 751 (Minn. 2005). Minnesota has long recognized that the
difference between ordinary and gross negligence is one of degree:

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Gross negligence is sub stantially and appreciably higher in
magnitude than ordinary negligence. It is materially more
want of care than constitutes simple inadvertence. It is an act
or omission respecting legal duty of an aggravated character as
distinguished from a mere failure to exercise ordinary care. . . .
Gross negligence is a manifestly smaller amount of
watchfulness and circumspection than the circumstances
required of a person of ordinary prudence. . . . Ordinary and
gross negligence differ in degree of inattention . . . .

State v. Bolsinger , 21 N.W.2d 480, 485 (Minn. 1946) (quoting Altman v. Aronson , 121
N.E. 505, 506 (Mass. 1919)); see Al-Naseer, 690 N.W.2d at 752 (recognizing that
Bolsinger “adopted” the Altman definition of gross negligence).
The district court found that Mills’s actions, overall, “show a shocking lack of
attention to the roadway.” In detailed findings of fact and a thorough memorandum of law,
the court explained its conclusion that Mills’s driving conduct was grossly negligent.
Despite driving a vehicle “appreciably larger than others” along an unfamiliar roadway,
Mills exceeded the speed limit. And he completely disregarded four distinct indications
that he was supposed to stop. Over a span of approximately 950 feet, he failed to observe
the tangible and audible warning of rumble strips, the visual warning of a “Stop Ahead”
sign, the tangible and audible warning of a second set of rumble strips, and even the visual
instruction to “Stop.” He was not merely slow to respond to these warnings and traffic
controls; he completely disregarded them . He did not take evasive action or apply the
brakes until after his semi crashed into the Tahoe at 65 miles per hour. No external factors
such as weather or visual obstructions impeded Mills’s ability to observe the warnings and
comply with the speed limit and stop sign.

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Mills does not challenge the district court’s findings regarding the events leading up
to the collision. But he contends that his conduct does not rise to the level of gross
negligence because it did not involve “the presence of some egregious driving conduct
coupled with other evidence of negligence,” that this court required in State v. Miller, 471
N.W.2d 380, 384 (Minn. App. 1991). This argument is unavailing. Miller involved a semi
driver who caused a fatal accident because his brakes did not work properly. 471 N.W.2d
at 383. In concluding that such conduct alone cannot establish gross negligence, Miller
did not impose an “egregious driving conduct plus negligence” r ule, as Mills suggests.
Rather, as this court observed in rejecting a similar argument, Miller holds only that
maintenance shortfalls, such as failure to inspect and maintain brakes, “cannot alone
support criminal gross negligence.” State v. Pelawa , 590 N.W.2d 142, 145 (Minn. App.
1999), review denied (Minn. Apr. 28, 1999), overruled on other grounds by Al-Naseer, 690
N.W.2d at 751-52. The undisputed evidence of Mills’s excessive speed, disregard of traffic
signs and warnings, and inattentiveness while d riving his semi amply meets the gross
negligence standard. Accordingly, sufficient evidence supports Mills’s convictions.
II. The district court did not abuse its discretion by denying a downward
sentencing departure.

A district court must impose a presumptive sentence unless “identifiable,
substantial, and compelling circumstances” justify a departure with respect to disposition
or duration . Minn. Sent. Guidelines 2.D.1 (2016). Ev en when a mitigating factor is
present, the district court is not obligated to depart. State v. Pegel, 795 N.W.2d 251, 253-
54 (Minn. App. 2011) (citing State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984)). We review

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a district court’s denial of a sentencing departure for an abuse of discretion, State v. Geller,
665 N.W.2d 514, 516 (Minn. 2003), and will reverse a presumptive sentence only in “rare”
cases, State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006) (quotation omitted).
Mills sought both a dispositional and a durational departure. The distr ict court
denied both and imposed a mid -range guidelines sentence of 58 months in prison. Minn.
Sent. Guidelines 4.A, 5.A (2016). Mills challenges both aspects of his sentence.
Disposition
“A dispositional departure places the offender in a different setting than that called
for by the presumptive guidelines sentence.” State v. Solberg, 882 N.W.2d 618, 623 (Minn.
2016). Such a departure is based on the defendant’s characteristics, rather than the nature
of the offense. Id. A dispositional departure may be warranted if the defendant is
“particularly amenable to probation.” Minn. Sent. Guidelines 2.D.3.a .(7) (2016). In
determining whether the defendant is particularly amenable to probation, the district court
may consider his age, prior record, remorse, cooperation, attitude in court, and the support
of friends and family. State v. Soto, 855 N.W.2d 303, 310 (Minn. 2014).
The record indicates that the district court carefully considered these departure
factors and explained on the record why it declined to depart dispositionally. The district
court weighed Mills’s relatively young age (27) against his four years of commercial
driving experience, reasoning that neither “age [n]or inexperience” established a basis to
depart. The court considered his relatively limited criminal record but also the fact that he
was on probation for assault at the time of the offense, finding that factor also did not favor
departure. The court likewise did not find Mills’s expressed remorse to be a basis for

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departure because it was remorse both “for what has occurred ” and for the consequences
to Mills himself. See Solberg, 882 N.W.2d at 626 (“[A] district court is properly tasked
with deciding whether a defendant’ s actions express genuine remorse and how much
weight to give to that remorse.”). And the district court noted Mills’s family support and
“positive attitude” in court but reasoned that, on balance, substantial and compelling
circumstances did not exist to deviate f rom the presumptive sentence. On this record, we
discern no abuse of discretion.
Duration
A durational departure occurs when the district court imposes a sentence that is
outside of the presumptive guidelines range. Minn. Sent. Guidelines 1.B.5.b (2016).
Unlike a dispositional depar ture, a durational departure must be based on factors bearing
on the seriousness of the offense, not the characteristics of the offender. Solberg, 882
N.W.2d at 623. A downward durational departure is justified only if the defendant’ s
conduct was “signif icantly less serious than that typically involved in the commission of
the offense.” Id. at 624. But the fact that the defendant did not engage in conduct that
would constitute a variation on the same offense, or other criminal conduct, does not
mitigate the seriousness of the defendant’s conduct. See id. at 627 (rejecting argument that
committing third -degree criminal sexual conduct through coercion rather than violence
makes the offense less serious than typical since the offense may be based on either).
This case is much like Solberg. Mills emphasizes that he was not texting or under
the influence of drugs or alcohol at the time of the accident, and that he remained at the
scene to render aid. See Minn. Stat. § 609.2112, subd. 1(a)(2) (including in definition of

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criminal vehicular homicide negligent driving while under the influence of alcohol or a
controlled substance that causes another’s death), (7) (including in definition of criminal
vehicular homicide leaving the scene after causing a fatal collision). While that may be
true, it does not change the fact that Mills’s excessive speed and wholly inattentive driving
conduct were grossly negligent, nor does it diminish the magnitude of that negligence. And
the district court aptly noted that Mills’s culpability was not mitigated by external factors
such as poor road conditions or limited visibility. We are not persuaded that the district
court abused its discretion by determining that Mills’s con duct was no less serious than
that of other persons who commit criminal vehicular homicide or criminal vehicular
operation. Accordingly, we conclude that this is not one of the rare cases in which we will
reverse a presumptive sentence.
III. The record does not support the district court’s calculation of Mills’s criminal-
history score.

When calculating the defendant’s criminal -history score, the district court must
assign the defendant one criminal-history point if at the time of the current offense he was
on probation for a felony, a non -traffic gross misdemeanor, or a “targeted misdemeanor.”
Minn. Sent. Guidelines 2.B.2.a (2016). That calculation must account for qualifying out-
of-state convictions, Minn. Sent. Guidelines 2. B.5 (2016), provided the state lay s the
necessary foundation, State v. Maley, 714 N.W.2d 708, 711 (Minn. App. 2006). “The state
has the burden of proving by a preponderance of the evidence the facts necessary to justify
consideration of out -of-state convictions in determining a defendant’s criminal history
score.” State v. Outlaw , 748 N.W.2d 349, 355 (Minn. App. 2008) (quotation omitted),

9
review denied (Minn. July 15, 2008) . We review a district court’s determination of a
defendant’s criminal-history score for an abuse of discretion. Maley, 714 N.W.2d at 711.
At sentencing, Mills did not challenge his criminal -history score or dispute that he
was convicted of and on probation for a Texas misdemeanor assault, as reported in the
presentence-investigation report (PSI). He now argues that the district court abused its
discretion by assigning him a custody-status point for being on probation at the time of the
current offense because the state failed to prove that the Texas offense was a qualifying
conviction.1 This argument has merit.
Under Minnesota law, fifth-degree assault is a “targeted misdemeanor.” Minn. Sent.
Guidelines 2.B.3.a.(1) (2016); see Minn. Stat. § 299C.10, subd. 1(e) (2016). Mills’s Texas
assault conviction may be treated as a “targeted misdemeanor” for sentencing purposes
only if it is the equivalent of the Minnesota offense. The PSI does not identify the Texas
statute that Mills was convicted of violating or detail the facts underlying the conviction.
And the Texas definition of assault encompasses a broader range of conduct than does the
Minnesota definition. Compare Tex. Penal Code Ann. § 22.21(a)(1) (West 2016) (defining
assault, in part, as “ intentionally, knowingly, or recklessly caus[ing] bodily injury t o
another”) with Minn. Stat. § 609.02, subd. 10 (2016) (defining assault, in part, as “ the

1 The state questions whether this issue is properly before this court because Mills raises it
for the first time on appeal. But “a defendant may not waive review of his criminal history
score.” State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007). A defendant may equally
pursue sentence correction through a motion for sentence correction, as in Maurstad, 733
N.W.2d at 144, and Maley, 714 N.W.2d at 711, or on direct appeal, as in Outlaw, 748
N.W.2d at 355, and State v. Scovel, 916 N.W.2d 550, 553 & n.5 (Minn. 2018) (noting that
“[a] defendant cannot forfeit appellate review of his criminal history score” and addressing
challenge to calculation raised for the first time on appeal).

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intentional infliction of or attempt to inflict b odily harm upon another ”). In short, the
record presented to the district court does not establish that Mills was on probation for a
qualifying offense at the time he committed the current offenses. Accordingly, we reverse
Mills’s sentence and remand to the district court for resentencing following the state’s
development of the record regarding Mills’s Texas assault conviction.
Affirmed in part, reversed in part, and remanded.