State Sufficiently Proves Past Pattern of Domestic Abuse to Uphold Murder Conviction

State v. Anderson, Minn.S.Ct.  3/26/2009.  A jury convicted Mr. Anderson of first degree murder while committing domestic abuse, Minn.Stat. 609.185(a)(6), for the death of A.G., the one year old son of his girlfriend, Monica.  The main appeal issue had to do with evidence to prove the element of past pattern of domestic abuse.

This element requires that the state prove that “the perpetrator has engaged in a past pattern of domestic abuse upon the victim or upon another family or household member.”  Id.  What the state must prove, however, is the past pattern, not the individual acts that comprise the pattern.  State v. Cross, 577 N.W.2d 721 (Minn. 1998).  Mr. Anderson complained that the trial court had incorrectly admitted evidence of three instances of "past-pattern evidence":

First:  After a night of drinking at a local bar, Mr. Anderson and Monica argued about whether it was time to leave; Monica wasn't quite ready to call it a night.  Mr. Anderson was, so he dragged Monica half way out of the bar, pushed her the remainder of the way out.  Monica said that she was embarrassed but felt no physical pain.

This one goes to the prosecution.  The jury, the court concluded, could have decided that Mr. Anderson dragged Monica out of the bar with the intent either to frighten her or to inflict bodily harm upon her.  This is either assault in the fifth degree or misdemeanor domestic assault.

Second:  Some three years before the homicide,  L.W., Mr. Anderson's main squeeze during the summer - this all occurred up in Wikin County, (some of which sadly enough is currently under water), in the northwest part of the state where summers aren't all that long - wanted to go from Anderson's place out to a bar with friends; Mr. Anderson objected by pushing L.W. against the wall behind his bedroom door to keep her from leaving.  She said that she was both hurt and scared.  She then left.

Third:  The next day, L.W. came back over to Mr. Anderson's place to get her car; Anderson again didn't want her to leave and he again kept her from leaving, this time by forcing her down on the bed, then holding her arms to prevent her from getting up.  Anderson's father happened to be there and he told his son to knock it off.  As L.W. was leaving, however, Anderson followed her out into the yard, with a renewed desire to keep L.W. in reach.  Anderson's brother told Anderson to knock it off; Anderson took umbrage and the brothers "scuffled," during which Anderson punched his brother.

Now, Anderson argued that the thing with L.W. was just a "summer fling," and not a "significant romantic or sexual relationship" required by the statute.  Minn.Stat. 518B.01, subd. 2(b).  Not only that, it happened too long ago, three years before the homicide.  As for the dust up with his brother, it was just that, a "scuffle between brothers."  The state said that admitting these two instances was discretionary and not an abuse of discretion, that the defense arguments were all jury questions.  If all that isn't enough, then it was harmless error to have admitted them because the trial court properly cautioned the jury, and because there were plenty of other instances to which the defense had not objected.

Whew!  The court leaves all that dust up in the air.  The court grabbed that harmless error argument and ducked the defense objections all together.  Two errors out of three plays usually gets you sent down to Rochester.  Not so for Mr. Anderson.  Conviction and sentence of life is affirmed.

If The Keys Are in the Car, You're Likely "In Physical Control" for DUI Laws

State v. Fleck, Minn.Ct.App., 3/24/2009.  At the not unreasonable hour of 11:30 p.m., officers found Mr. Fleck asleep behind the wheel of his car.  The car was lawfully parked in the apartment complex parking lot where Mr. Fleck lived; the keys were on the console between the front bucket seats.  The problem was, Mr. Fleck was "obviously intoxicated."  Police arrested him for first degree driving while impaired.  On testing, his blood alcohol level was 0.18.  A jury convicted him and the court sent him to prison for 48 months.

Here's how the Court of Appeals framed the legal issue:

Is evidence that a person was found alone, intoxicated, and asleep behind the wheel of his operable motor vehicle parked at his residence with the keys on the center console sufficient to support convictions of driving while impaired by reason of being in physical control of a vehicle within the meaning of Minn. Stat. § 169A.20, subd. 1(1), (5)?

The short answer is, yes.  The Court distinguishes an earlier "sleeping it off in the car" case on the basis of the whereabouts of the car keys.  In State, City of Falcon Heights v. Pazkerski, 352 N.W.2d 85 (Minn.Ct.App. 1984), Pazderski slept in his car to avoid a fight with his girlfriend.  The keys weren't in the car, at least according to the appellate opinion.  Mr. Fleck's keys, on the other hand, were right there; that he had no intention of driving anywhere was "immaterial."

Dueling Banjos: If It's Neither Lothenbach Nor A Stipulated Facts Trial, Then What?

State v. McKissic, 2009 WL 670040, Minn.Ct.App., 3/17/2009.  The state charged Mr. McKissic with failure to register as a predatory offender.  Mr. McKissic decided to represent himself and eventually agreed to resolve the case.  This resolution devolved into a blur of procedural requirements and legal jargon.  Although it's unreported, it's worth of a look see.

Here are the apparent facts.  Both Hennepin County and Ramsey County charged Mr. McKissic with failure to register; the specific accusation was that a Hennepin County conviction for interference with a 911 call extended Mr. McKissic's original period of registration.  The Hennepin District Court, however, dismissed that Complaint for lack of venue.  Ramsey County then amended its Complaint to limit the alleged registration failure to the original term of registration.  (The amended allegation appeared to be that Mr. McKissic had moved without notifying the BCA.)  Mr. McKissic moved to dismiss the Ramsey Complaint for three reasons:  the previous Hennepin dismissal; lack of jurisdiction; and discovery violations.  The court received the Hennepin dismissal papers but only in support of Mr. McKissic's dismissal motion.  Ramsey denied the motion on all three grounds.

Here's where the resolution gets mushy.  In essence, the court and parties interspersed procedures and jargon from two distinct rules, such that the appellate court could not ascertain which of two procedures had been undertaken.  This confusion meant that it was not entirely certain just what could or could not be raised on appeal.

There were two criminal rules in play.  The first is Rule 26.01, subd. 3, which the Court of Appeals denominated the "stipulated facts" rule.  Here's what it says:

Subd. 3. Trial on Stipulated Facts. By agreement of the defendant and the prosecuting attorney, a determination of defendant’s guilt, or the existence of facts to support an aggravated sentence, or both, may be submitted to and tried by the court based on stipulated facts. Before proceeding in this manner, the defendant shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant's presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and the waiver shall be in writing or orally on the record. If this procedure is utilized for determination of defendant’s guilt and the existence of facts to support an aggravated sentence, there shall be a separate waiver as to each issue. Upon submission of the case on stipulated facts, the court shall proceed as on any other trial to the court pursuant to subdivision 2 of this rule. If the defendant is found guilty based on the stipulated facts, the defendant may appeal from the judgment of conviction and raise issues on appeal the same as from any trial to the court.

The second rule is Rule 26.01, subd. 4, which the Court denominated as the "Lothenbach trial" rule.  Here's what it says:

Subd. 4. Stipulation to Prosecution’s Case to Obtain Review of a Pretrial Ruling. When the parties agree that the court’s ruling on a specified pretrial issue is dispositive of the case, or that the ruling otherwise makes a contested trial unnecessary, the following procedure shall be used to preserve the issue for appellate review. The defendant shall maintain the plea of not guilty. The defendant and the prosecuting attorney shall acknowledge that the pretrial issue is dispositive, or that a trial will otherwise be unnecessary if the defendant prevails on appeal. The defendant, after an opportunity to consult with counsel, shall waive the right to a jury trial under Rule 26.01, subdivision 1(2)(a), and shall also waive the rights specified in Rule 26.01, subdivision 3. The defendant shall stipulate to the prosecution’s evidence in a trial to the court, and acknowledge that the court will consider the prosecution’s evidence and may find the defendant guilty based on that evidence. The defendant shall also acknowledge that appellate review will be of the pretrial issue, but not of the defendant’s guilt, or of other issues that could arise at a contested trial. The defendant and the prosecuting attorney must make the foregoing acknowledgments personally, in writing or orally on the record. The court after consideration of the stipulated evidence shall make an appropriate finding, and if that finding is guilty, the court shall also make findings of fact, orally on the record or in writing, as to each element of the offense(s).

Under the "stipulated facts" rule, a defendant is agreeing to a trial to the court instead of a jury, but on facts stipulated but not conceded.  If the court trial results in a guilty finding, then a defendant may raise any appropriate issues on appeal.  Under a "Lothenbach" trial, however, the court is presented with facts that are both stipulated and conceded.  Any appeal is limited to adverse rulings of pretrial issues that both parties have agreed are dispositive.

So, the moral here:  pick a rule and stick to it.

Oh, Brother, Where Are Thou, Indeed

 State v. Williams, Minn.Ct.App., 3/17/2009.  The state charged Prodochee Williams, age thirty-one, with first degree criminal sexual conduct, alleging that he had sex with his fifteen-year old half sister.  The amended Complaint alleged that Mr. Williams had a "significant relationship" with his half sister.  The defense moved to dismiss, arguing, successfully in the trial court, that "half-brother" is not included in the list of defined "significant relationships."  Minn.Stat. 609.341, Subd. 15(2).  The state appealed this pretrial ruling.

Here's the statutory definition of a "significant relationship":

any of the following persons related to the complainant by blood, marriage, or adoption: brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great-aunt.

The Court of Appeals flew down to the State Law Library and scooped up all of the dictionaries, legal and otherwise.  It seems that we live in more enlightened times, as the most recent editions of these dictionaries all defined "brother" to include "half brother."  Here, for instance, is what the Oxford English Dictionary had to say about the word, "brother" (1987):

The word applied to a male being to express his relationship to others (male or female) as the child of the same parent or parents.

. . . .

. . . The son of the same parents. But often extended to include one who has either parent in common with another (more strictly half-brother, or brother of the half blood)[.]

The Compact Edition of the Oxford English Dictionary 1132 (1987).

Well, that settles it, one would think. 

“Where the legislature’s intent is clearly discernable from plain and unambiguous language, statutory construction is neither necessary nor permitted and we apply the statute’s plain meaning.” Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536, 539 (Minn. 2007); see also Minn. Stat. § 645.16 (2006) (providing that when the language of a statute is “clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit”).

Not so.  Leave it to the legislature to muck things up.  (According to www.askoxford.com, "muck" is to behave in a silly or aimless way; it fits.)  It seems that the legislature has sometimes included "half-[whatever]" in its laundry lists of family relations.  This lets the court loose with hammer and nail for some statutory construction.  Here's the pithy conclusion:

If this court were to interpret the law to exclude half-brothers, the law would then include step-brothers (with no blood relation) and cousins (genetically more distant than half-brothers) but exclude a brother related by half blood. This result would both be illogical and contrary to the overall statutory purpose of prohibiting intra-family sexual contacts.

The Court of Appeals reverses the dismissal and remands.

---

Evelyn Mulwray: She's my daughter.
[Gittes slaps Evelyn]
Jake Gittes: I said I want the truth!
Evelyn Mulwray: She's my sister...
[slap]
Evelyn Mulwray: She's my daughter...
[slap]
Evelyn Mulwray: My sister, my daughter.
[More slaps]
Jake Gittes: I said I want the truth!
Evelyn Mulwray: She's my sister AND my daughter!

Chinatown, 1974.