Venue in OFP Prosecution, Based Upon Sending an Email, is Proper in Either the Sender’s or the Recipient's Location But State Failed to Prove Either in this Case

State v. Pierce, Minn.Ct.App., 12/7/2010.  The Hennepin District Court granted an order for protection to Wenona Kuhrman against Mr. Pierce.  The order specifically prohibited any contact by electronic means, including email.  Mr. Pierce sent Ms. Kuhrman an email from his MySpace account.  The state charged Mr. Pierce with violating the order for protection.

Trial testimony did not establish where Mr. Pierce was when he sent the message; testimony also did not establish just where Ms. Kuhrman was when she first read the email.  Alas, there also was neither testimony about where Ms. Kuhrman was when an officer viewed the message on her computer, nor testimony about what police department did so.

There are two questions here:  venue and sufficiency of the evidence.  First, venue.  Article I, Section 6 of the state constitution says that prosecution must be in the county or district where the crime occurred so the state had to prove that the violation was committed in Hennepin County.  The appellate court concludes that the offense of violating the order for protection includes both the sending and the receipt of the email.  So, venue can be proper in either the sender’s location or the recipient’s location. 

But, did the state prove either location?  No.  The state offered no evidence to establish where Mr. Pierce was when he sent the email.  While the state offered evidence of Ms. Kuhrman’s address in Hennepin County, that is not sufficient.  The OFP statute contains no residence-based venue provision, unlike the harassing telephone calls statute, 609.79, which specifically includes where the receiver resides.  That said, it appeared to the appellate court that Ms. Kurhman’s computer was likely a laptop, which she could have opened, literally, anywhere on the planet.  The appellate court also rejects the invitation to adopt a continuing violation theory, based upon Ms. Kuhrman’s offer, while on the witness stand in an admittedly Hennepin County court room, to open her her computer and show everyone the offending email. 

Court Rejects Challenges to Classifying “khat” as a Controlled Substance

State v. Ahmed & Adam, Minn.Ct.App., 11/23/2010.  The state charged Mr. Ahmed and Mr. Adam with possession of a controlled substance, commonly known as khat.  Each moved to dismiss, claiming that khat was not a “material compound, mixture, or preparation which contains any quantity of . . . [c]athinone; [m]ethcathinone” in Minn. Stat. § 152.02, subd. 2(6) (2008).  However, way back in 2000, the court of appeals held that possession of khat is criminal.  State v. Ali, 775 N.W.2d 914, 921 (Minn. App. 2009).  Mr. Ahmed and Mr. Adam made various treaty, religious freedom, and equal protection arguments, all of which the appellate court rejects.

Changing Lanes Without Signaling in Order To Give Room to Emergency Vehicle on Shoulder Still Authorized Traffic Stop.

State v. Doebel, Minn.Ct.App., 11/23/2010.  A deputy sheriff stopped Mr. Doebel’s car because Mr. Doebel did not signal a lane change.  Mr. Doebel apparently had seen an emergency vehicle off on the shoulder and in an effort to avoid a ticket for remaining the right lane as he whizzed past the emergency vehicle he moved into the left lane.  He should have stayed where he was because the deputy found all manner of contraband in Mr. Doebel’s car and discovered that he was drunk to boot.

Mr. Doebel challenged the stop.  There are two statutes in play.  The first, more general statute, says that no person shall “move right or left upon a highway unless and until the movement can be made with reasonable safety after giving an appropriate signal.” Minn. Stat. § 169.19, subd. 4.  The other statute, specific to emergency vehicles, says:

When approaching and before passing an authorized emergency vehicle with its emergency lights activated that is parked or otherwise stopped on or next to a street or highway having two lanes in the same direction, the driver of a vehicle shall safely move the vehicle to the lane farthest away from the emergency vehicle, if it is possible to do so.

Minn. Stat. § 169.18, subd. 11(a).

This emergency vehicle statute says nothing about giving a signal before getting out the way of (the wrath) of the emergency vehicle (or another emergency vehicle following behind you.)  If a general statute is in conflict with a specific statute, the courts are to try to give effect to them both.  Minn. Stat. § 645.26, subd. 1 (2008).  No argument there.  The appellate court decides to “give effect” to both by reading into the emergency vehicle statute the requirement of giving a signal.  The court does throw a little bone, however, saying that had it been necessary for Mr. Doebel to have made an abrupt lane change to avoid plowing into the emergency vehicle then perhaps no signal would have been required.

Valid Civil Settlement Between Victim & Criminal Defendant Limits Any Award of Restitution.

State v. Ramsay, Minn.Ct.App., 10/19/2010.  Ms. Ramsay’s employer, Minnesota Eyecare, sued her, claiming that she had helped herself to as much as $150,000.00 of its money through various nefarious schemes.  The state got into the action by bringing a theft prosecution against her.  Minnesota Eyecare and Ms. Ramsey mediated a settlement of the civil case under which she agreed to pay back $125,121.00 as damages, and an additional twenty grand over five years “as a condition of her probation.”  Minnesota Eyecare agreed to recommend to the prosecutor that restitution be ordered in the amount of $20,000.00.  Lastly, there was the standard release by each party of claims by the other.  Thereafter, Ms. Ramsay negotiated a plea with the state under which she agreed that it was up to the state to establish the amount of restitution.

This last part of the plea negotiation was because the parties had a falling out over the civil agreement.  Eventually, Minnesota Eyecare was demanding nearly ninety grand in restitution and Ms. Ramsay was resisting paying the originally agreed upon additional twenty grand.  The trial court eventually set restitution in the neighborhood of forty-five thousand, denominated as “tangential expenses,” read, Minnesota Eyecare’s attorney’s fees mostly.

Now, the court of appeals just dealt with this kind of problem in State v. Arends, 786 N.W.2d 885 (Minn. App. 2010), pet. for review denied (Minn. Oct. 27, 2010).  Arends says that the civil settlement limited Minnesota Eyecare to restitution of twenty thousand; the state could not try to work around that valid agreement because its restitution efforts were on behalf of Minnesota Eyecare; that state thus had no authority to ask for one more penny.  If that were not enough, Ms. Ramsey’s plea was to theft of more than $1,000.00 but less than $5,000.00, and she did not make admissions beyond that (and everyone knew that by the time of sentencing she had paid what she had agreed to pay in the civil settlement, 125 large).  As a consequence, the trial court had no factual basis on which to have ordered restitution.

Jury Need Not Be Unanimous About Which of Defendant’s Multiple Acts Constituted Single Count of Domestic Assault.

State v. Dalbec, Minn.Ct.App., 10/19/2010.  A jury convicted Mr. Dalbec of gross misdemeanor domestic assault of his fiancée, S.M., (at least at the time).  Here’s what he may have done, may because the jury really didn’t say very precisely, over a roughly twenty-four hour period of time. 

First Episode:  He pulled the mattress off the bed, dumping S.M. onto the floor; he pushed her into a filing cabinet; he pushed her a second time; he tossed her through a doorway. 

Second Episode many hours later:  Mr. Dalbec pushed S.M. out of the way as he came into their apartment; he grabbed her phone and broke it; he kicked in the door after he briefly left (which gave S.M. enough time to bolt the door); he pushed S.M. around the apartment some more.  Mr. Dalbec left.

Third Episode again hours later:  Mr. Dalbec forced open the bedroom door behind which S.M. was trying to keep him out.

Now, without objection, the jury instructions rolled all this into one package, which included all three ways in which one may commit an assault in Minnesota:  an act committed with intent to cause fear of immediate bodily harm; the infliction of bodily harm; or the attempt to inflict bodily harm.  On appeal, Mr. Dalbec suggested that this was plain error, that the jury should have been instructed that it had to unanimously agree on which of several acts constituted the assault.

The appellate court says, no.  The element in question here is the assault.  So long as the jury agrees that Mr. Dalbec intended to assault S.M., the means by which he accomplished it was of no consequence, at least under the single charge brought against him.  (In fact, the appellate court thought that Mr. Dalbec got a break because the state did not charge him with separate counts of assault.)  The court does point out that if the defense to the various separate acts had been inconsistent with each other, then there might be a problem.  It cites in State v. Stempf, 627 N.W.2d 352 (Minn. App. 2001).  In that case the state charged a single count of possession of narcotics, in support of which it offered evidence of two independent events.  In one event, police found narcotics at defendant’s workplace; in the other they found narcotics in a truck in which he had been a passenger. 

DNA Exemplar for Juvenile Adjudicated of Gross Misdemeanor Okay Under Fourth Amendment, but On Review to Supreme Court

In the Matter of the Welfare of M.L.M.,, Minn.Ct.App., 4/20/10, review granted, 6/29/10.  M.L.M. and a buddy stole some clothes from a department store, damaged said clothing, then ran from the cops before getting caught.  Among other things, the state charged M.L.M. with various theft related offenses, with property damage, and with fleeing a peace officer.  She eventually settled the case for a gross misdemeanor theft adjudication, for which the juvenile court ordered her to submit to a DNA sample.  Ms. M.L.M. argued that this was unconstitutional.

The statute that purports to authorize the DNA collection is Minn.Stat. 609.117, subd. 1(2), which kicks in when the court “adjudicates a person a delinquent child who is petitioned for committing or attempting to commit a felony offense and is adjudicated delinquent for that offense or any offense arising out of the same set of circumstances.”   The Minnesota Supreme Court had already rejected a Fourth Amendment challenge to this sort of DNA data mining for adults convicted of felony offenses, State v. Bartylla, 755 N.W.2d 8  (Minn. 2008); and the Court of Appeals had ruled similarly in the case of someone convicted of a misdemeanor arising from the same set of circumstances as a charged felony offense.  State v. Johnson, 777 N.W.2d 767, 772 (Minn. App. 2010), pet. for review granted(Minn. April 20, 2010).  For more on Mr. Johnson, go here.

The appellate court rejects the challenge to the DNA collection, but the opinion is currently pending review by the Minnesota Supreme Court. 

Continuance for Dismissal Over State’s Objection Limited to Clear Abuse of Prosecutorial Discretion

State v. Strok,, Minn.Ct.App., 7/20/10.  Ms. Strok stole some stuff from Macy’s at the Ridgedale Mall; the state charged her with gross misdemeanor theft.  The trial judge continued the case for dismissal for one year over the state’s objections.  It turns out that had Ms. Strok shoplifted enough to get herself charged with a felony she likely would have gone to Property/Drug Court where she would have got a diversion.  The city of Minnetonka didn’t see it that way and filed a pretrial appeal.

Absent an agreement, a court may order a continuance for dismissal only to avoid an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.  State v. Foss, 556 N.W.2d 540, 540 (Minn. 1996).  That the trial court here thought that a diversion was commensurate with dispositions of similar cases is far short of a finding of a clear abuse of discretion.  The appellate court sends the case back to district court.

Falsely Reporting Police Misconduct Unconstitutional Viewpoint Discrimination.

State v. Crawley, Minn.Ct.App., 9/28/10.  Ms. Crawley filed a report of police misconduct, asserting that an officer forged her signature on a medical release to obtain her medical records.  When a nurse said that she had seen Ms. Crawley sign the release, the state charged her with falsely reporting police misconduct and falsely reporting a crime.  Falsely reporting misconduct is:

Whoever informs, or causes information to be communicated to, a peace officer, whose responsibilities include investigating or reporting police misconduct, that a peace officer . . . has committed an act of police misconduct, knowing that the information is false, is guilty of a crime . . . .

Ms. Crawley argued that this statute was “viewpoint discrimination” because it only criminalized false statements that criticize police.  The appellate court points out that making a false statement that attempts to absolve a police officer of misconduct would not be punishable under this statute.  That makes prosecution turn on content, which you can’t do.  R.A.V. v. City of St. Paul, 505 U.S. 377, (1992):

Minn. Stat. § 609.505, subd. 2 criminalizes knowingly communicating false information regarding police only when that communication alleges misconduct. Because the distinction between false critical information and false exonerating information discriminates based on the viewpoint of the speaker and does not fit under a recognized exception to content discrimination, this subdivision of the statute violates the First Amendment.

There was a vigorous dissent by Judge Harten.  The case is presently pending the state’s request for review by the Minnesota Supreme Court.

Asperger’s Evidence Rejected; Miranda Waiver Valid

State v. Anderson, Minn.S.Ct., 10/14/2010.  Katherine Olson responded to an e-mail request from “Amy” for a baby sitting job.  It wasn’t “Amy,” however, it was Mr. Anderson.  Acting on a tip, police found Olson’s body in the trunk of her car, which was parked at a park reserve.  She had been shot in the back.  Forensic evidence linked Mr. Anderson to Ms. Olson.  Mr. Anderson’s computer had postings from “Amy” for a baby sitter, to which Ms. Olson had responded. 

A grand jury indicted Mr. Anderson on first degree premeditated murder; told the police during a custodial interrogation that he had used the online service to solicit Olson “to babysit,” that he had been present when Olson was killed, and that a friend had said that he thought killing her would be funny.  While in jail, he said he had killed her to find out what killing someone felt like.  Mr. Anderson initially pleaded not guilty by reason of mental illness - defense experts said that Mr. Anderson had Asperger’s – but he later withdrew that defense.  He did, however, attempt to introduce expert evidence of the physical and cognitive effects of Asperger’s, which the trial court denied.

Mr. Anderson challenged his custodial interrogation on Miranda reasons.  The claim seemed something of a tag a long to the Asperger’s evidence issue.  The appellate court did rather timidly remind the cops that they should clearly inform suspects just what crimes that they want to ask questions about, but that telling Mr. Anderson that the subject of the questioning was a “missing person case” was close enough to the real subject –homicide; after that, they made short work of the Miranda claim and moved on. 

Mr. Anderson argued that there were three reasons why the jury should have heard evidence about Asperger’s.  First, it was necessary to explain the physical mannerisms associated with this illness, especially the inability to empathize, show remorse or respond properly to social cues.  The trial judge, after peering over the bench at Mr. Anderson, noticed nothing particularly unusual about his behaviors and excluded any expert testimony on that basis.

Second, Mr. Anderson said that expert testimony was necessary to explain how his Asperger’s brain functions differently from that of a “normal” brain, especially in considering mens rea.  The appellate court won’t go there because it leads to reconsideration of, if not the adoption of, diminished capacity.  What that means is that it’s not whether Mr. Anderson had the capacity to form intent but whether he did so, something that can only be determined from his physical actions.

So, if you are offering expert mental health evidence to show an absence of guilt based on a diminished capacity to form the required mental state for the offense charged, you can’t do it.  But, if you are offering that evidence to present the jury with an alternative explanation of behavior (that the state would argue supports a conclusion of guilt), you can.  See, State v. Maddox, Jr., Slip Op. A10-372 (10/12/2010), petition for review pending.

Mr. Anderson wanted an accident instruction but the trial court wouldn’t give one, instead instructing on culpable negligence manslaughter.  The appellate court said that the two instructions allowed Mr. Anderson to argue his accident theory to the jury so that was good enough.  The appellate court also declined to parse the premeditation instruction that says that a person has to “consider, plan, prepare for or determine to commit the act” before committing it.  The jury wanted to know if all of these things had to occur in order for them to find premeditation; the appellate court ducked the question by approving the trial court’s repetition of the very instruction.  Finally, the appellate court continues to approve the jury instruction that says that premeditated decision to kill may be reached in a “short period of time,” even though case law consistently said that “some appreciable time must pass” before premeditation can exist.  Justices Paul Anderson and Page, concurring, suggest that it’s time to revise this instruction.