Predatory Offender Registration Applies to Kidnapping Committed to Collect Ten Day Old Drug Debt.

State v. Lopez, Minn.Ct.App., 4/28/2009.  The Lopez brothers arranged to sell a quantity of methamphetamine to a fellow who turned out to be a confidential informant.  The agreed upon price was $600.00.  When the deal went down, the CI not only purchased the drugs for $600.00; he went on to broker a side deal for a bit more meth, for three hundred more dollars to be paid at a later date.  Ten days later the CI called his law enforcement minder to report that Mr. Lopez was holding him hostage in lieu of payment of the balance.  The deputy coughed up the money but made Mr. Lopez drive over to the local ball field to collect it; Mr. Lopez took the CI along with him.  The state charged Mr. Lopez with aiding and abetting the drug offense and with aiding and abetting kidnapping.  Mr. Lopez negotiated a plea to the drugs and a dismissal of the kidnapping.

The trial court said that Mr. Lopez had to register as a predatory offender because the drugs conviction arose out of the same circumstances as the kidnapping charges.  Minn.Stat. 243.166, subd. 1b(a)(1).  The appellate court was okay with that conclusion.  The complaint had charged Mr. Lopez with aiding and abetting kidnapping for the purpose of facilitating the commission of a felony, in this case, the drugs offense.  It didn't matter that the drug offense was complete after the first meeting; the meeting and delivery ten days later of the remaining $300.00 was just a completion of the completed drug offense. 

Mr. Lopez has to register.

Despite Statutory Language To The Contrary a Motel Room is a "Building" Unto Itself Under the Burglary Statute

State v. Lopez, Minn.Ct.App., 4/24/2017.  Mr. Lopez was staying in a motel out in Wilmar.  He entered Z.D.'s motel room, which was unlocked, and stole Z.D.'s cell phone and wallet while Z.D. was in the shower.  The state charged Mr. Lopez with theft and with first degree burglary.  The trial court convicted Mr. Lopez of both counts.

On appeal Mr. Lopez said, as he had during trial, that he had not entered a "building" without consent because he was staying at the motel - a "building", surely -, and that Z.D.'s separate motel room was not a "building. The court of appeals said no to both of these claims.

Everyone agreed that Mr. Lopez had consent to enter the motel, itself; after all, he'd rented a room (different from Z.D.'s room).  So, the conviction for the burglary turns on whether Z.D.'s room is a "building," or more accurately, a "sub-building". Mr. Lopez said that it was not, pointing in particular to the arson statute that says that “If a building consists of two or more units separately secured or occupied, each unit shall be deemed a separate building.”  Minn. Stat. § 609.556, subds. 1, 3 (2014). 

Looking directly at the burglary statute - or to what's not in the burglary statute - he also pointed out that until 1983 the definition of "building" in the burglary statute expressly included "portions of such structure as are separately occupied." Like a motel room. Removing that language, he argued, indicated the legislature's desire not to treat individual, enclosed spaces within a larger building - alas, a motel room - as separate "buildings."  Rather than simply pointing to what's not in the burglary statute the court of appeals says that the post 1983 language is ambiguous.  Further, although it has skirted around the question of whether under the post 1983 burglary statute a "building" encompasses sub-units like Z.D.'s motel room it has not answered the question.  Time to haul out the dictionaries and Phoenix-like raise up the old statute.

Where the court finds that a "structure" includes anything intentionally constructed from component parts.  A motel room fits that definition so the court is half way home.  To complete the journey the court looks to the statutory definition of a "building." The statute says that a "building" is a  "structure" that is "suitable for affording shelter for human beings."  Well, a motel room is by its very existence "suitable for affording shelter for human beings." That's the whole point:

We are mindful of the fact that the legislature modified the definition of “building” for the crime of burglary in 1983 and, in doing so, did not expressly provide that a separate unit “shall be deemed a separate building,” as it did for arson. Minn. Stat. § 609.556, subd. 3. We are also mindful that our holding means that both a motel and a rented room within the motel qualify as a “building” for the purposes of the burglary statute. But inartful language is not necessarily ambiguous language. And we conclude that the statute as written unambiguously defines a motel room as a “building.” 

The court thus reinserts the very language that the legislature struck out thirty-four years ago.  Sigh.

Trial Court’s Failure to Advise Unrepresented Misdemeanor Defendant of Possible Immigration Consequences From Guilty Plea Satisfies Fair and Just Standard for Plea Withdrawal

State v. Lopez, Minn.Ct.App., 2/8/11.  Without benefit of counsel, Mr. Lopez, who is a permanent resident but not a citizen, pled guilty to a misdemeanor theft charge.  The trial court did not advise Mr. Lopez that if he were not citizen that the guilty plea may result in deportation, exclusion from admission to the United States or denial of naturalization.  This advisory is required under Rule 15.02, subd. 1(3).  Before sentencing he asked to withdraw the plea.  The trial court said no under the post sentencing standard of correcting a manifest injustice.

This is the wrong standard.  The correct one is “fair and just reason.”  The court of appeals declares that the rule’s requirement of the advisory is “fundamental” and defines the minimum standards for insuring that a plea is valid.  The court of appeals also considered that Mr. Lopez was not represented by counsel, that he did not sign a written plea petition, that he had only limited experience with the criminal justice system.  Finally, the court pointed to the recent Padilla decision to support its conclusion that the immigration consequences are “deeply important.” 

Predatory Offender Registration – Whether Offense of Conviction “Arises out of same set of circumstances” as Dismissed Predatory Offense is Issue of Fact.

State v. Lopez, Minn.S.Ct., 02/11/2010.  We last heard from the Lopez brothers back in May when the court of appeals held that they had to register as predatory offenders.  Go here.  You’ll recall that the brothers sold methamphetamine to a confidential informant.  Later that month, the brothers allegedly held the informant hostage for about forty minutes until the informant’s minder arranged to pay the $300.00 that he owed on the earlier drug deal.  This lead to drug and kidnapping charges.  Each was convicted on the drug offense but the kidnapping charges were dismissed.

Even so, the district court ordered the brothers to register as predatory offenders, saying that the kidnapping charges arose out of the same set of circumstances as the drug charges.  The court of appeals upheld the trial court but the supreme court now reverses.

The court construes the language of Minn.Stat. 243.166 in reaching its conclusion.  The “same set of circumstances” provision of the statute requires registration:

where the same general group of facts gives rise to both the conviction offense and the charged predatory offense. In other words, the circumstances underlying both must overlap with regard to time, location, persons involved, and basic facts. Although the conviction offense need not be based on identical facts to the charged predatory offense, the facts underlying the two must be sufficiently linked in time, location, people, and events …

Here, there is only one single common circumstance, payment of a debt from the drug sale.  The drug sale was complete upon transfer of the drugs; the confinement ten days later was only to collect the debt, too tenuous a connection to require registration under the statute.

Predatory Offender Statute Does Not Require Written Notice of Change in Employment

State v. Munger, Minn.Ct.App., 1/12/2015.  The state charged Mr. Munger with three counts of failure to register under the predatory registration statute:  (1) Failure to provide written notice five days before he moved from Minnesota to Colorado; (2) failure to inform his agent or law enforcement authority that he was no longer employed; and (3) failure to return the annual verification letter sent to him in Colorado.  Mr. Munger’s underlying conviction that triggered registration was an assault in the second degree, the jury having acquitted him of kidnapping and false imprisonment charges involving an adult.  At the time of that conviction, kidnapping required registration only if a minor was involved.  Mr. Munger moved to dismiss these three charges because he was not a “person required to register.”  The trial court denied that motion and the judge convicted him of all three counts.  The court imposed a concurrent thirty-six month sentence of counts one and three but imposed a consecutive sentence of one year and a day on the other one.

On appeal, Mr. Munger argued that the registration statute does not require written notice of change in employment.  That, it turns out, is correct.  Even so, however, there was enough evidence to prove that he had failed to give even verbal notice that he’d quit his job when he moved to Colorado.   On the dismissal argument – acquittal of the offenses that required registration – Mr. Munger’s argument was that acquitted charges cannot support a probable cause finding for purposes of the registration statute.  This is a riff on State v. Lopez, 778 N.W.2d 700 (Minn. 2010), which held that an offender does not need to be convicted of a predatory offense in order to trigger the registration requirements so long as the predatory offense is support by probable cause.  In Lopez, the predatory offense had been dismissed.  In State v. Haukos, 874 N.W.2d 270 (Minn.Ct.App. 2014) the court of appeals affirmed the use of acquitted charges to require registration.  The court was not willing to revisit that holding.

Under “Plain Error” Test, Admission of Two Out of Court Statements Did Not Violate Crawford; Court Ducks Challenge to Admissibility of Fingerprint Evidence.

State v. Hull, Minn.S.Ct., 9/9/10.  Lewis Wilczek went missing after a family barbeque.  Six days later, police found his body buried in a gravel pit.  A grand jury indicted Mr. Hull for Mr. Wilczek’s murder, and a jury convicted him.  Mr. Hull did not deny killing Mr. Wilczek; rather, he argued that he had acted with neither premeditation nor intent.

On appeal, Mr. Hull complained that the admission of two out of court statements made by Mr. Wilczek to third parties violated his confrontation rights.  In one such statement, J.B., a friend of Mr. Wilczek’s said that Mr. Wilczek told him that he was meeting Mr. Hull and that if he wasn’t back by a certain time “somethin’ was probably wrong.” 

Mr. Hull did not raise the confrontation claim at trial and so on appeal, “plain error” is the standard of review.  Under that standard the appellate court handily concludes that this statement was of the “casual remark to an acquaintance” kind and not a “formal statement” to a police officer.  It was thus not testimonial.  Moreover, it was not hearsay because it was admitted to explain J.B.’s efforts to find Mr. Wilczek the next day.

The second out of court statement was to a police officer at least.  Mr. Wilczek called the police to report the theft of cash and checks from his business.  Mr. Wilczek offered the name of a suspect but it was not Mr. Hull; the problem was, defense counsel elicited the information on cross examination that Mr. Hull’s name “came up” during the report.  Now, naming Mr. Hull as a possible suspect clearly was to assist the cops in the investigation so that’s “testimonial” evidence.  The question was, though, who started this name calling anyway?

The appellate court rejects the state’s contention that Mr. Hull had “opened the door” to the officer’s statement about Mr. Hull’s name coming up.  The appellate court said, wait a minute:  that the state had started it because there was no other reason to offer evidence of the theft except to dirty up Mr. Hull.  (Chief Justice Gildea and Justice Dietzen concluded that Mr. Hull did “open the door” and thus waived the Confrontation Clause right, relying on a Tenth Circuit opinion, United States v. Lopez-Medina, 596 F.3d 715 (10th Cir. 2010).  Cf., United States v. Cromer, 389 F.3d 662 (6th Cir. 2004).]  In any event, whoever started it, admitting this testimony was not plain error.

In a pretrial hearing, Mr. Hull moved to exclude fingerprint and handwriting evidence.  The trial court held a hearing, limited to whether the procedures that had been followed in this case complied with appropriate standards and controls.  A majority agreed in principal that lengthy use of a method by law enforcement and unquestioning acceptance by courts does not by itself exempt expert testimony from scrutiny under the first prong of the Fry-Mack test, whether the test has been generally accepted as scientifically reliable.  At the same time, the appellate court declined to send the case back to the trial court for a full blown, anything goes, Fry-Mack hearing.  Instead, the appellate court ducks the issue, concluding that if they could figure out that there was error it was harmless. 

State May Rely Upon Drug Field Test To Establish Probable Cause

State v. Knoch, Minn.Ct.App., 4/20/2010.  Ms. Knoch and Ms. Watson moved to dismiss their drug possession charges, arguing that the field testing of the suspected drugs was not enough to establish probable cause to support the Complaints.  They wanted the appellate court to adopt a bright line rule that required a confirmatory lab test to establish probable cause.  The facts are mostly the same, but let’s start with Ms. Knoch.

Officers executed a search warrant at Ms. Knoch’s apartment, finding some meth, along with a zippered pouch that contained pipes and baggies that contained narcotics residues.  The officers field tested one of the pipes, the Narcotic Identification Kit (NIK) Test U, described as something like a litmus test you’d use in your garden; if it turns blue add nitrogen.  In this case, if the paper turned blue, which it did,  it meant meth.  The officers did no further testing.

Now, Ms. Watson.  Police executed a search warrant at her place, finding some meth, some pipes and an electronic scale.  The officers field tested two of the three pipes, using the same test kit as they had used for Ms. Knoch, getting the same blue result on each.  Again, the officers did no further testing.

The trial court held a joint evidentiary hearing on the motions to dismiss.  Various science types testified to the accuracy of this particular field test.  The defense called a former DEA agent who said that the DEA would not rely only on this field test to identify a controlled substance.  The trial court went with the litmus test and denied the motions to dismiss.  The trial court did, however certify these two questions:

A. Is a positive test result indicating the presence of a secondary amine in a presumptive and not confirmatory test, such as a NIK Test U, sufficient, taken together with other case-specific facts and circumstances, to support a finding of probable cause in a controlled substance prosecution?

B. Assuming a positive preliminary test result, is the State required to obtain a confirmatory test to establish probable cause in a criminal prosecution?

The appellate court spends a good portion of its opinion arguing with itself over the shape and size of the bargaining table.  Neither they nor Ms. Knoch and Ms. Watson liked the questions.  After several pages, the appellate court reduced the two questions to this single one:

In a prosecution for possession of a controlled substance, may the state ever establish probable cause based on evidence of a field test of a substance alleged to be a controlled substance, without evidence of a confirmatory test of the substance?

Now, the defense reminded the appellate court that just this year the supreme court said that the prosecution needed enough evidence to support a conviction in order to defeat a probable cause dismissal motion.  State v. Lopez, 778 N.W.2d 700 (Minn. 2010).  Unfortunately, previous opinions establish that if the identification of the drug is in question, “the sufficiency of the evidence is examined on a case-by-case basis.”  State v. Olhausen, 681 N.W.2d 21 (Minn. 2004).  The defense countered that a defendant can’t be convicted of a drug possession offense unless the state has sufficient scientific evidence to prove the identify of the substance.  State v. Vail, 274 N.W.2d 127 (Minn. 1979).

In the end, none of this mattered.  The appellate court concludes that the trial court properly concluded that the state is not foreclosed from finding probable cause on the basis of a field test.  The state’s evidence at the hearing established that the test in question was sufficiently reliable enough, at least to establish probable  cause.  In a final, parting shot, the appellate court invites a future defendant to get her own confirmatory test that says that a particular substance is not a controlled substance; then, you might win.