Supreme Court Grants Review on Question of Computing "Within Ten Years" of prior DUI Convictions

State v. Wertheimer, Minn.Ct.App., 4/7/ 2009, review granted, 6/*/2009.  The state charged Mr. Wertheimer with first degree driving while impaired, for an arrest on May 12, 2007.  He had thrice been convicted of DWI, one of which occurred on May 12, 1997.  (See where this is going?)

Mr. Wertheimer argued that the May 12, 1997 DWI conviction was not "within ten years of three prior qualified driving related offenses."  The trial court and the court of appeals disagreed, relying upon a statute by which to compute time, Minn. Stat. 645.15.  This statute says:

Where the performance or doing of any act, duty, matter, payment, or thing is ordered or directed, and the period of time or duration for the performance or doing thereof is prescribed and fixed by law, the time, except as otherwise provided in sections 645.13 and 645.14, shall be computed so as to exclude the first and include the last day of the prescribed or fixed period or duration of time. When the last day of the period falls on Saturday, Sunday, or a legal holiday, that day shall be omitted from the computation.

So, you don't count May 12, 1997 so the ten year term commences the next day, May 13, 1997.  You do count the last day, which would be May 12, 2007.  The 1997 conviction is in.  The Supreme Court has granted review.

EJJ Adjudication For Offense Involving Firearm Prevents Departure From Sixty Month Mandatory Minimum Sentence on Gun Possession by Ineligible.

State v. Jiles, Minn.Ct.App., 6/23/2009.  Mr. Jiles has an EJJ adjudication of second degree assault involving a firearm, and a adult felony motor vehicle theft conviction.  The EJJ adjudication and car theft make him ineligible to possess firearms.  He did so anyway and pleaded guilty to it.  The offense carries a mandatory minimum sentence of sixty months imprisonment.

The trial court found "substantial and compelling reasons" to sentence Mr. Jiles to a sentence of only thirty-four months.  The state appealed that departure.  The state argued that because Mr. Jiles' assault EJJ adjudication involved a firearm the court could not ignore the mandatory minimum sentence because of the terms of Minn.Stat. 609.11, subd. 8(b).  This statute says that the court may not:

sentence a defendant without regard to the mandatory minimum sentences established by this section if the defendant previously has been convicted of an [assault] in which the defendant used or possessed a firearm or other dangerous weapon.

Mr. Jiles suggested that the use of "convicted" did not include an EJJ adjudication and so subd. 8(b) didn't apply to him.  The appellate court disagreed, citing Minn.Stat. 260B.245, subd 1, which equates an EJJ adjudication to an adult felony criminal conviction for purposes of the sentencing guidelines.  The appellate court also thought that because Minn.Stat. 624.713 refers to an EJJ adjudication as a "conviction" that an EJJ adjudication is a conviction.

Minnesota Supreme Court Grants Review in Two Cases

State v. Fleck, Minn.Ct.App., 3/24/2009.  I wrote about this case here.  Police found Mr. Fleck asleep behind the wheel of his car, which was lawfully parked in the apartment complex parking low where he lived; the keys were in the console between the front bucket seats.  The Court of Appeals had agreed with the trial court that Mr. Fleck was in control of the car for DUI purposes.  The Minnesota Supreme Court has granted review of the Opinion from the Court of Appeals.

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State v. Hakala, Minn.Ct.App., 3/31/2009.  I wrote about this case here.  The trial court had excluded a defense expert to challenge the validity of the techniques and protocols used by the social worker in interviewing alleged victims of sexual assault.  The Court of Appeals had held that this exclusion was an abuse of discretion.  the Minnesota Supreme Court has granted review.

Upward Departure in Criminal Sexual Conduct Conviction is Upheld

State v. Grampre, Minn.Ct.App., 6/9/2009.  Mr. Grampre broke into his neighbor's home while she slept, then sexually assaulted her as he held a knife to her throat.  The victim's young daughter was in the next room.  Mr. Grampre pleaded guilty to two counts of criminal sexual conduct, first degree burglary, and second degree assault.  The trial court imposed an upward departure on the basis of three aggravating factors:  particular cruelty, particular vulnerability, and prior planning.

The trial court supported its finding of particular cruelty because Mr. Grampre woke the victim, held a knife to her throat during the sexual assault, then forced her to take a shower after the rape.  His argument to the appellate court was that because the use of the knife was the factual basis for the second degree assault conviction, it could not be a basis for departure under the recent Opinion, State v. Jones, 745 N.W.2d 845 (Minn. 2008).

Jones identified four improper grounds for departure, one of which is that conduct underlying one conviction cannot be relied on to support departure on a sentence for a separate conviction.  The appellate court said that Mr. Grampre would be correct but for a statutory exception, which Jones recognized:

Notwithstanding subdivision 1, a prosecution or conviction for committing a violation of sections 609.342 to 609.345 with force or violence is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct. If an offender is punished for more than one crime as authorized by this subdivision and the court imposes consecutive sentences for the crimes, the consecutive sentences are not a departure from the Sentencing Guidelines.

Minn.Stat. 609.035, Subd. 6 [emphasis in original].  The use of the knife constitutes "force" and thus triggers this statutory exception.  It was thus permissible for the trial court to rely upon the use of the knife in finding particular cruelty.

The appellate court then goes on to uphold the departure.  In doing so, it totally ignores last month's Minnesota Supreme Court Opinion, State v. Vance, available here.  In Vance, as here, children were present in the residence but neither saw nor heard the sexual assault that occurred in a different room.  Vance held that this was not a sufficient basis for a departure.

The state conceded that Mr. Grampre could not be convicted and sentenced on both criminal sexual conduct counts that arose from the same facts.  The appellate court vacated one of those convictions and sentences.

Defense Expert on Alcohol Blackouts Cannot Testify Whether a Defendant Who Is In One Can Formulate Specific Intent

State v. Ptacek, Minn.Ct.App., 6/9/2009.  A jury convicted Mr. Ptacek of first degree criminal sexual conduct against his fifteen year old nephew.  Mr. Ptacek raised an intoxication defense; he offered testimony from an alcohol abuse counselor to testify about alcohol blackouts in general, the effects of a blackout, and whether Mr. Ptacek was in one at the time of the offense.  Essentially, the expert would state that Mr. Ptacek's blackout state prevented him from formulating the specific intent required for commission of this offense.  The trial court would only permit this expert to testify about what blackouts are and about the factors that cause them.

The trial court relied on rather well settled law in Minnesota, State v. Griese, 565 N.W.2d 419, 425 (Minn. 1997), best stated in State v. Provost, 490 N.W.2d 93 (Minn. 1992):

[J]urors must look to „what a defendant says and does‟ to determine whether a defendant acted with the requisite intent.

Here's what the trial court said about what the expert could not say to the jury:

I don't want you to give an opinion whether there was an en bloc blackout or a fragmentary blackout in this case. I don't want you to give an opinion that people do things in blackouts that they normally wouldn't do under normal circumstances. I don't want you to give any opinion that people seek treatment after these events. I don't want you to talk about OCB, your coined phrase of out-of-character behavior. And I don't want you to try to estimate or guesstimate a blood alcohol concentration of [appellant] or what the blood alcohol concentration needs to be in order to get it a blackout state.

Mr. Ptacek also griped about the JIGS definition of fellatio; if you want to know about that, follow the link to the opinion.

Erroneous Source Code Ruling But No New Trial

State v. Crane, Minn.Ct.App., 6/2/2009.  This litigation began even before Underdahl I, 735 N.W.2d 706 (Minn. 2007).  Thereafter, the trial court ruled that the state didn't have the source code and so denied the defense request for it.  As we all know now, Underdahl II, 2009 WL 1150093 (Minn. 4/30/2009), that's wrong.  What, therefore, is the remedy for Mr. Crane?  Nothing, as it turns out.

The state charged Mr. Crane both with being under the influence and with having a blood alcohol level over the limit.  The appellate court concluded that the trial court's denial of the motion for the source code was prejudicial on the blood alcohol level count, but it was not prejudicial on the under the influence count. 

There's a dissent that is actually more interesting that the majority opinion.  The dissent would uphold the trial court because Underdahl II's assertion that the state has the code is a legal fiction, and because Mr. Crane didn't cite the correct - if there is one - subsection of Rule 9.  Mr. Crane's motion cited subdivision 2(1), which the dissent thought was fatal, as explained in footnote 2:

Such relief may be obtained pursuant to subdivision 2(3), which authorizes a district court to “require the prosecuting attorney to disclose to defense counsel . . . relevant material and information” that is actually possessed by the prosecuting attorney. See Minn. R. Crim. P. 9.01, subd. 2(3). Subdivision 2(1), however, by its express terms, applies only to matters that are not in the possession or control of the prosecuting attorney but are “within the possession or control of an official or employee of any governmental agency.” Minn. R. Crim. P. 9.01, subd. 2(1). Crane did not move for, and could not have obtained, relief under subdivision 2(3) because it is undisputed that the prosecuting attorney in this case, the city attorney for the city of Mankato, does not have possession or control of the source code.

Second Amendment Not Enforceable Against the States and so Firearm Possession by Ineligible Statute is not Unconstitutional.

State v. Turnbull, Minn.Ct.App., 6/2/2009.  Minnesota joins the legal battle that is shaping up after last term's District of Columbia v. Heller, 128 S.Ct. 2783 (2008), which held that the Second Amendment conferred an individual right to keep and bear arms.  The Court of Appeals joins the side that has declined to extend Heller to the states.

The Ninth Circuit has reached the opposite conclusion, Nordyke v. King, (07-15763), but this case is procedurally further behind than a couple of other cases.  The Eleventh Circuit agrees with Minnesota, United States v. Rozier, (11th Cir. 3/4/10), available here.

If you want to follow this litigation, a good place to start is here, and here. 

It is Unlawful to Carry a Pistol While Under the Influence of Alcohol in One's Own Place of Business.

State v. Gradishar, Minn.Ct.App., 6/2/2009.  Mr. Gradishar owns and manages a bar in Duluth.  One night at the bar - it must have been a slow night - Mr. Gradishar just happened to mention to one of his (apparently disgruntled) employees, an off duty cop, that he had his gun in his pocket, for which he had a permit.  The cop asked Mr. Gradishar if he'd been drinking; when Mr. Gradishar admitted that he had, the cop arrested him for carrying a pistol in a "public place" while under the influence of alcohol.

Such behavior happens to violate Minn.Stat. 624.7142, which says:

A person may not carry a pistol on or about the person’s clothes or person in a public place . . . when the person is under the influence of alcohol.

The appellate court decides that a "public place" for purposes of this statute is:

generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not.

This definition ignores a perfectly good definition found elsewhere in Chapter 624 (emphasis added):

"Public place" means property owned, leased, or controlled by a governmental unit and private property that is regularly and frequently open to or made available for use by the public in sufficient numbers to give clear notice of the property's current dedication to public use but does not include: a person's dwelling house or premises, the place of business owned or managed by the person, or land possessed by the person; a gun show, gun shop, or hunting or target shooting facility; or the woods, fields, or waters of this state where the person is present lawfully for the purpose of hunting or target shooting or other lawful activity involving firearms.

Now, this statutory definition is in a section that prohibits the carrying of BB guns, rifles, or shotguns, Minn.Stat. 624.7181.  This section, curiously, does not prohibit Mr. Gradishar from carrying a shotgun about the bar while under the influence.

Inmate's Letter Writing Campaign, in Violation of an Order For Protection, Sufficiently Establishes Pattern of Harassing Conduct.

State v. Franks, Minn.S.Ct., 5/14/2009.  The district court found Mr. Franks guilty of four counts of violation of an order for protection, and one count of pattern of harassing conduct.  The primary issue on appeal was whether the facts supported the later conviction; if so, then there's a sentencing issue as well.  To understand the former, there's nothing for it but a rather lengthy recitation of the "history of the relationship" of Mr. Franks and one "J.R."

Mr. Franks and J.R. met up in 1996, got married in 2002, and got divorced in 2004; along the way they had two children, A.F., and B.F.   In between the separation and the divorce, J.R. obtained an order for protection, which said that Mr. Franks:

"shall have no contact, either direct or indirect, with [J.R.] or the children, whether in person, with or through other persons, by telephone, letter, or in any other way” except by court-supervised visitation. Franks was present at the order for protection hearing.

Two days after the district court issued this order, Mr. Franks crow-barred his way into J.R.'s home, whereupon he committed various acts of mayhem upon her, for which he went to prison for seventy-eight months.  Then the letters started. 

But first, let's see what Mr. Franks must have done in order to be guilty of pattern of harassing conduct.  First, he must have committed two or more designated predicate offenses, including violation of an order for protection.  Next, he must have known or had reason to know that this conduct would cause a particular victim under the circumstances to "feel terrorized" or to fear bodily harm.  Lastly, he must have actually caused the victim to "feel terrorized" or to fear bodily harm.  Minn.Stat. 609.749, subd. 5(a).

The appellate court construes "to feel terror" to mean the same thing that "terrorize" means under the terroristic threats statute:

to cause extreme fear by use of violence or threats.

State v. Schweppe, 306 Minn. 395, 400, 237 N.W.2d 609, 614 (1975).  This is one of only two points that go to Mr. Franks.  Now, back to the letters.

Mr. Franks wrote to his young children (which J.R. had to read to them) ("It's all your Mom's fault that you can't come see me."); to J.R. ("Don't you think you've been playing a game with me plenty long?"); to one of J.R.'s friends(Describing his sexual prowess with J.R.'s friends while they were married with the invitation to be sure to let J.R. know about it; describing all the iron he's been pumping in the joint.); and to J.R.'s parents (It's your daughter's fault that I can't see my kids.). 

The generous view of all this correspondence was a plea to be able to see his children while in prison and when he got out.  The jaundiced view - and that of the appellate court - would be this:

  a reasonable trier of fact could have found that Franks had reason to know that the statements in his letters would send several messages to J.R., including that if she did not agree to prison visitation with his sons, Franks would punish J.R. financially; that he would cause her sons to despise her; that even in prison he still had the power to reach out and emotionally hurt and embarrass her with her friends; that he would soon be released from prison and that he would be even bigger and stronger than before; that her efforts to protect her sons were futile because once he was released from prison there was no way J.R. would be able to prevent contact; and that in the end he would obtain custody of their children. These threatened future acts, as well as the underlying acts of repeatedly sending letters in violation of the existing order for protection, are of a nature and tenor to support a finding that Franks had reason to know that his letters would cause J.R., who had been the victim of Franks’ past acts of terror, to fear bodily harm or to feel extreme fear.

Under this view, the evidence is more than sufficient.

Now for the sentencing issue.  The trial court sentenced (consecutively) on the four counts of violation of a no contact order.  The appellate court assumed, without deciding, that the trial court could sentence on either these four counts or the pattern count but not both.  However, under the Guidelines, the pattern count is the more serious offense so that's the one that should have been sentenced.  The appellate court remands the case with instructions to impose sentence on the pattern of harassing conduct conviction.