Guns & Sentencing Calculations

State v. Williams, MN.Ct.App.,  2008 WL 4908201 (11/18//2008).

As B.H. got to his mom's truck, "Little Cuz" pointed a gun at him, demanded that he empty his pockets, then shot him in the butt.  "Little Cuz" turned out to be Mr. Williams, whom the police easily found and arrested a short while later.  Mr. Williams was not supposed to be in possession of firearms, so the state charged him with this offense, along with two counts of attempted first degree aggravated robbery - B.H.'s mom was in the truck - first degree assault and attempted second degree assault.  The state made various charging amendments to the Complaint; a jury eventually convicted Mr. Williams of just about everything.  The trial court, however, sentenced only on the ineligible person/firearm and first degree assault.

The trial court used the Hernandez method by which to sentence Mr. Williams to a sixty month sentence on the ineligible person/firearm count and then to increase his criminal history score before sentencing on the assault.  This bumped the assault sentence from 146 to 160 months (high end of the box).  The trial court did sentence concurrently.  On appeal, Mr. Williams complained, among other complaints, about the use of the Hernandez calculation method.  (Hernandez permits this bumping when a court sentences a defendant on day for multiple offenses that were not part of a single behavioral incident, that occurred at different time, and involved different victims.  State v. Hernandez, 311 N.W.2d 478 (Minn. 1981).)

No one disputed that Mr. Williams' actions were a single behavioral incident.  Minn.Stat. 609.035, S. 1 generally prohibits multiple sentences in such cases, but there's an exception for felon in possession charges, which the defense did not challenge.  It was the sentencing bump that got their ire.  The appellate court has twice, (sort of), before answered this question, but not with the same answer. 

In the first instance, the appellate court said it was okay to employ Hernandez.  A jury convicted a Mr. Bergren of ineligible person/firearm and burglary.  The trial court used the Hernandez bump to increase his history score on the second sentence.  The appellate court said that this was okay because the legislature intended to treat firearms offenses differently from other offenses that are part of the same course of conduct.  State v. Bergren, 2001 WL 378978 (Minn.Ct.App. 2001). 

In the second instance, the appellate court said, no, it's not.  State v. Wood, 2007 WL 1053003 (Minn.Ct.App. 2007).  A jury convicted Mr. Wood of ineligible person/firearm and three counts of second degree assault, same behavioral incident.  Because the state conceded the issue, the appellate court went along with it.

Not this time, and published to boot.  The court drills into the commentary to the Guidelines to support this result.  Guidelines section II.B.107 (originally II.B.102) states the Hernandez rule.  Comments to this application section, however, remind readers of instances when the Hernandez bump cannot be employed even though a statute authorizes multiple sentences in a single behavioral incident situation:   burglary and criminal sexual conduct, single behavioral incident, M.S. 609.585; kidnapping and some other offense, single behavior incident, M.S. 609.251; certain methamphetamine offenses, M.S. 152.137.  The Guidelines Commission, sadly, has not inserted a comment about ineligible person/firearms & something else convictions and so the Hernandez bump is okay.

Well, it's never too late, so get those emails and phone calls to the Commission going.  After all, we only need a comment, not an actual, binding rule.  State v. Rouland, 685 N.W.2d 706 (Minn.Ct.App. 2004). 

Not Charging the Right Subsection Results in Acquittal of CSC III Charges

State v. Blevins, MN.Ct.App., 11/25/2008.  The state had an extremely intoxicated victim and no apparent force in this criminal sexual conduct case.  In response, the state charged Blevins with pinpoint precision with two counts of criminal sexual conduct in the third degree, the "physically helpless" subsection, M.S. 609.344, S. 1(d).  This subsection provides that:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if . . . the actor knows or has reason to know that the complainant is . . . physically helpless.

The jury convicted Blevins and he appealed, arguing, successfully as is turns out, that there was insufficient evidence that the victim was "physically helpless."  Among the statutory definitions of "physically helpless" is this one:

unable to withhold consent or to withdraw consent because of a physical condition...

The victim, T.W., consumes ten to twelve alcoholic drinks and was admittedly drunk.  In that condition, she was unable at bar closing time to find her car; Mr. Blevins offered his assistance.  He searched for the car underneath the crawl space under some porch, at which time he asked T.W. if he could kiss her and put his arm around her.   Here's what the court said happened next:

T.W. testified about appellant’s advances that she “was along with some of it but that’s not what [she] wanted” and that she made sure that appellant knew that she just wanted help finding her car. Appellant eased T.W. onto her back and asked if he could perform oral sex on her. T.W. testified: “I told him I didn’t want him to, and he just kept telling me it would be okay. . . . I asked him to please not and he said it will be fine. . . .” T.W. testified that because she felt stuck, uncomfortable, and afraid, she “just let it happen” and “waited for it to be over.” Appellant first performed oral sex on T.W. and then had sexual intercourse with her. During this time, T.W. did not scream or fight because she was afraid that appellant would harm her in other ways and because she was in an unfamiliar neighborhood.

T.W. did not consent to the sexual assault; the court had no difficulty making this determination.  In fact, at trial, the defense made a point of establishing this, asking her point blank whether she was "conveying to [Blevins] that you didn't want this sexual activity to occur."  The set the hook and the appellate court reeled in the reversal.  Why?  The statute requires the state to prove either that T.W. was able to withhold consent, or that she was able to withdraw consent.  She admitted that she not only could but was actually withholding consent; she was not, therefore, "physically helpless" under the statutory definition.  Well, you just gotta pay attention to those double negatives.

Of course, the state could have also charged Blevins with the same offense but under a different subsection, that of using force or coercion.  (1)(c).  See State v. Carter, 289 N.W.2d 454 (Minn. 1979). 

How Not to Use a Snow Plow

Mell v. Commissioner of Public Safety, Mn.Ct.App. 11/25/2008.

Kevin Swanson called the sheriff’s office to report that Scott Mell was ramming Swanson’s vehicle with a pickup truck with a plow on it. This occurred out on a frozen East Rush Lake, near the Flckaberds Resort. The deputies followed a pickup truck from the resort to Mell’s driveway. This pickup did not have a plow on it. The pickup truck that was in Mell’s garage did have a plow on it, however. The deputies arrested Mell anyway, on assault charges. Although the deputies detected alcohol on Mell’s breath, they did not think he was intoxicated, and they did not perform any sobriety tests.

That task fell to the local jail, which required all arriving guests to submit to a preliminary breath test. Mell’s test results, which the jail passed along to the arresting deputies, were 0.146. The arresting deputies then decided that Mell had been driving the pickup without the plow while intoxicated, and so they read him the implied consent advisory; they also made a phone available to Mell, who was, nonetheless, unable to reach an attorney at two in the morning. Public Safety eventually revoked Mell’s license, and he sought review of that revocation.

The appellate court found that there was probable cause to arrest Mell on assault charge. The court based this determination on Swanson’s account of the assault, which included the claim that he saw Mell driving the pickup truck with the plow on it. The deputies’ discovery of a pickup truck with a plow on it in Mell’s garage was enough additional information to support probable cause.

The court also held that the jail’s administration of the PBT was permissible under the statute, Minn.Stat. § 169A.41, relying on an earlier Opinion, State v. Laducer, 676 N.W.2d 693 (Minn.Ct.App. 2004). The jail’s administration of the test was also not a violation of either the federal or state constitution. The jail’s interest in screening a person being jail outweighed the rather diminished privacy interest of the person being jailed.

Finally, the court rejected Mell’s claim that his Friedman right to counsel had been violated.