12/30/2015: No Supreme Court Published Criminal Opinions

Failure to Make Findings on Statutory Factors to be Considered in Juvenile Expungement Request Requires Remand of Grant of Expungement

In the Matter of the Welfare of:  J.T.L., Child, Minn.Ct.App., 12/28/2015.  The district court granted an expungement request by J.T.L. of his various criminal sexual conduct adjudications.  There's a statute for that, Minn.Stat. 260B.198, subd. 6(b).  This statute says that the court "shall consider" a laundry list of factors on the way to deciding whether expungement would yield a benefit to the child that outweighs the detriment to the public and public safety:

(b) In making a determination under this subdivision, the court shall consider:

(1) the age, education, experience, and background, including mental and emotional development, of the subject of the record at the time of commission of the offense;

(2) the circumstances and nature and severity of the offense, including any aggravating or mitigating factors in the commission of the offense;

(3) victim and community impact, including age and vulnerability of the victim;

(4) the level of participation of the subject of the record in the planning and carrying out of the offense, including familial or peer influence in the commission of the offense;

(5) the juvenile delinquency and criminal history of the subject of the record;

(6) the programming history of the subject of the record, including child welfare, school and community-based, and probation interventions, and the subject’s willingness to participate meaningfully in programming, probation, or both;

(7) any other aggravating or mitigating circumstance bearing on the culpability or potential for rehabilitation of the subject of the record; and

(8) the benefit that expungement would yield to the subject of the record in pursuing education, employment, housing, or other necessities. 

Well, it's a long list.  The trial judge adopted the proposed order by J.T.L.'s counsel which did not contain any specific findings regarding these factors.  The state appealed, saying that the failure to make such findings poisoned the grant of expungement.

The court of appeals agrees, concluding that "shall consider" really means "shall make findings about" each of the factors.  The court sends the case back to the trial court for a redo.

Warrantless Urine Test Is Not Authorized Under Search Incident to Arrest Exception to Warrant Requirement

State v. Thompson, Minn.Ct.App., 12/28/2015.  The year comes to a close as it began with yet more skirmishing over the constitutionality of DWI/test refusals.  Back in February the state supreme court said in Bernard that a warrantless breath test was constitutional under the search incident to arrest exception to the warrant requirement. In October the court of appeals then said, well, that's fine, but Bernard only applies to warrantless breath tests and we don't think that a warrantless blood draw is permissible under the search incident exception.   State v. Trahan.  The state supreme court quickly accepted review of that case, but then the U.S. Supreme Court accepted cert in State v. Bernard.  Time will tell who laughs last.

This go round the court of appeals once again pokes the state supreme court in the eye, this time over charging Mr. Thompson with refusal to submit to a warrantless urine test.  The court of appeals cuts and pastes from its Trahan opinion to reach the same conclusion about warrantless urine tests: it's not constitutional under the search incident exception to the warrant requirement because of its intrusiveness.  In fact, if anything, a urine test is even more intrusive:

“There are few activities in our society more personal or private than the passing of urine.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413 (quotation omitted). Because a driver must produce a urine sample in front of an officer, a urine test is unquestionably more intrusive than a breath test. See Bernard, 859 N.W.2d at 768 n.6 (explaining that a breath test is less invasive than a blood or urine test). A urine test “intrudes upon expectations of privacy that society has long recognized as reasonable.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413.

The court also concludes, as it did in Trahan, that a warrantless urine test violated Mr. Thompson's substantive due process right to be free from unreasonable searches. 

Unfounded Claims of State Interference With Petitioner's Post Conviction Witnesses Defeat Claims

McKenzie v. State, Minn.S.Ct., 12/23/2015.  Mr. McKenzie, who is serving a life sentence for a murder, filed this post conviction petition which alleged that a witness, Wendell Martin Sr., had recanted his trial testimony.  Martin, Sr. had testified at Mr. McKenzie's trial that McKenzie had confessed to the killing while the two of them shared a jail cell.

Mr. McKenzie produced affidavits from LaMonte Martin and Heidi Mastin, each of which said that Martin, Sr. had told them that he had lied at McKenzie's trial.  In between the pleadings and the evidentiary hearing, Mastin pled guilty to some other offense under an agreement that purported to forbid her from testifying at Mr. McKenzie's post conviction hearing.  As a result, Mastin withdrew her affidavit.  Thereafter, but before the evidentiary hearing, the post conviction court said that the provision of the plea agreement forbidding Mastin from testifying was not enforceable. Even so, Mastin did not re-submit her affidavit.  Instead, she asserted a Fifth Amendment privilege and chose not to testify.  Voiding the provision of Mastin's plea agreement took McKenzie's interference claim off the board because it was based entirely on the provision of Mastin's plea agreement that forbid her from testifying.

Martin, Sr. also asserted a Fifth Amendment privilege.  This occurred after the assistant county attorney had a little chat with him, during which Martin Sr. said that his trial testimony had been the "absolute truth."  The assistant county attorney then informed the court that he would pursue criminal charges against Martin, Sr. if he testified.  

Mr. McKenzie cried foul, saying that the prosecutor had interfered with his witnesses' decision whether to testify.  Chief Justice Gildea only considered the claim for Martin, Sr.  Mr. McKenzie said that this interference took two forms:  the prosecutor's interview with Martin, Sr., after the court had appointed counsel to represent him, and the threat to prosecute him if he testified.  The chief justice rejects both of these claims. On the first one, the trial court had found that Martin, Sr. was not represented by counsel at the time of the interview with the prosecutor and so there was no interference.  As to the second form, Martin, Sr. undercut if not eliminated any claim by having said to the post conviction court that he wasn't worried about the state prosecuting him and that any fear of prosecution was not why he was declining to testify.

Next, Mr. McKenzie said that the post conviction court should have granted his witnesses use immunity because the state had substantially interfered with the decisions of his witnesses to testify.  Now, having just said that there was no substantial interference with the decisions of these witnesses not to testify that should have been the end of it.  Nonetheless, the chief goes on to question whether the use immunity statute even applies in a post conviction proceeding.  Assuming that it does, the court points out that the statute requires that the prosecutor request use immunity, which didn't happen here.  Continuing to plow ahead, the court completes its advisory opinion by saying that if there were to be such power to grant use immunity in a post conviction proceeding where the prosecutor hasn't asked for it it could only be in the face of "egregious prosecutorial misbehavior," which, again, didn't happen.     

Appellate Review of Claim of Biased Juror Waived By Failure to Object

State v. Geleneau, Jr., Minn.Ct.App., 12/21/2015.  The state charged Mr. Geleneau, Jr. with multiple counts of criminal sexual conduct.  In this combined direct appeal and appeal of the denial of a post conviction petition the focus is on jury selection.  Mr. Geleneau, Jr. said that the trial court had erred by not dismissing two prospective jurors for cause sua sponte.  He also said that he trial counsel had been ineffective for not moving to strike these two prospective jurors for cause.

The long and the short of it is that because trial counsel expressly waived his right to challenge the prospective jurors for cause - "That's all the questions I have this afternoon.  I pass [the panel] for cause, Your Honor." - Mr. Geleneau, Jr. could not complain on direct appeal that the trial judge should have done the work for him. Both the rules and prior case law say that counsel has to object, in this case by moving to strike the prospective jurors for cause in order to seek appellate relief.  The absence of an objection is enough, by itself, to reject a biased-juror argument on appeal. The court implies but ultimately ducks saying that a trial court never has an obligation to strike a biased juror sua sponte.

Turing to the ineffective assistance claim the court Mr. Geleneau, Jr. did not argue that trial counsel was obligated to allow a defendant to make decisions about keeping or striking prospective jurors.  That makes the failure to have moved to strike for cause a discretionary call by trial counsel.  The trial court wrote a lengthy rationale supporting trial counsel's decision not to seek to strike the two prospective jurors, which the court of appeals accepts.  Read that yourself and agree or disagree with it.

What's more intriguing is the court's dismissal of an affidavit from an unnamed "experienced criminal defense attorney" who reviewed only a three-page summary of the transcript of voir dire which had been prepared by post conviction counsel:

[The] opinions offered by the experienced criminal defense attorney are incapable of proving that the strategic decisions of trial counsel, who was present in the courtroom and undoubtedly had multiple sources of information about the prospective jurors, were below an objectively reasonable standard of performance.

No Seizure Occurs By Officer's Illumination of Already Stopped Vehicle by Squad Spotlight

Illi v. Commissioner of Public Safety, Minn.Ct.App., 12/21/2015. At around 1:30 in the morning an officer saw a red Jeep drive into the parking lot of a stip mall, then stop along a curb in that lot behind a delivery truck.  The officer pulled in behind the Jeep and to its left, stopping several feet away.  The officer illuminated the area with his spotlight and then walked over to the Jeep.  The officer neither activated his emergency lights nor used the squad's loudspeaker.  

Ms. Illi was the sole occupant in the Jeep.  When the officer got to the driver's side of the Jeep he noticed signs of her intoxication. One thing led to another and the officer arrested Ms. Illi for suspected drunk driving.  At the police station Ms. Illi refused to provide an adequate breath sample to determine her intoxication level.  The Commissioner revoked her license; she challenged that revocation saying that the officer had illegally seized her under the state constitution by blocking her in and by shining the squad's spotlight on her vehicle.

The district court had found that the officer had not parked his squad car so as to have prevented the Jeep from leaving.  The court of appeals accepts that finding and thus rejects Ms. Illi's first assertion that the officer seized her by the positioning of his squad car.

The court also rejects Ms. Illi's other assertion that the officer seized her by illuminating the Jeep with the squad's spotlight. There's a case from 1989, Crawford v. Commissioner of Pubic Safety, 441 N.W.2d 837 (Minn.Ct.App. 1989), where the officer briefly illuminated an already stopped vehicle.  The court had held that this did not constitute a seizure.  The court here concludes that the permanency of the spotlight's illumination is a distinction without difference:

We have no cause to suppose that a reasonable person would feel significantly more or less free to drive away depending simply on whether or not the officer had turned the spotlight off before approaching. These salient circumstances did not constitute a seizure in Crawford, and so they also do not constitute a seizure here. 

12/16/2015: No Supreme Court Published Criminal Opinions

Evidence Sufficient to Support Assault 4; Batson Challenge Denied

State v. Ivy, Minn.Ct.App., 12/14/2015.  The state charged Ms. Ivy with fourth degree assault of a peace officer.  The peace officer in question, who during his "day job" is a St. Paul officer, was working off duty at Regions Hospital when Ms. Ivy caused a scene. The officer's job title at Regions is that of a "uniformed security officer."  Uniformed security officers get to wear police uniforms with a hospital ID.  Regions also employs "hospital safety and security officers."  They wear cargo pants and pullover shirts. 

Because of Ms. Ivy's boorish and obscene behavior the officer in question asked her to leave.  In the course of escorting Ms. Ivy off the premises she ended up tearing the officer's shirt, and clawing his face with her hands and fingernails which left scratch marks and blood on his face.  It was only then that the officer in question arrested Ms. Ivy; before that he was only going to throw her out.

The jury convicted her of the assault.  She argued on appeal that the evidence had been insufficient to prove that the officer in question was either executing a lawful arrest or executing any other duty imposed by law.  Minn.Stat. 609.2231, subd. 1.  Ms. Ivy said that the officer in question was only enforcing hospital policy - behave yourself - and not executing any other duty imposed by law.  The court said, well that may be, but the officer in question was also protecting the health and safety of the hospital's patients and preventing a breach of the peace.  And surely those are two duties "imposed by law" upon a St. Paul cop.  More importantly, the officer in question had probable cause to have arrested Ms. Ivy for trespass because she had sneaked back into a part of the emergency room where she did not have authorization to be.  And she was causing a scene:  disorderly conduct.  That the officer in question decided initially only to remove Ms. Ivy from the premises rather than arrest her does not mean that he was not exercising a duty imposed by law. 

There's also a Batson issue.  A prospective juror stated that she had two cousins who had been charged with crimes, one with whom she was close. She also stated that an officer had pulled her over one time and she believed that the officer had used her boyfriend's prior gang involvement as a reason to search her car.  Finally, she described a negative hospital experience where her mother was refused service for the ostensible reason that she had no proof of insurance.  Because the prospective juror believed that the explanation for refusing service was racially motivated, she behaved rather badly toward hospital staff.  Both this prospective juror and Ms. Ivey are African American.  The state struck this prospective juror and Ms. Ivy objected.  

The state said that the prospective juror's hospital experience of a loved one whom she believed was not getting appropriate care because of race and her rather naughty response to that service refusal were both race-neutral reasons for excluding her.  The state then doubled down on the experience of the prospective juror's cousins with the legal system and the incident when an officer pulled her over to satisfy the requirement that these reasons not be pretextual.  Both the trial court and the court of appeals accepted these assertions.  Ms. Ivy fails in her Batson challenge.

Mail Properly Addressed and Sent Is Presumed to Have Been Duly Received

State v. Osorio, Minn.Ct.App., 12/14/2015.  Back in March 2007 the state investigated a claim that Mr. Osorio had sexually abused his minor stepdaughter.  No charges were filed at the time.  Mr. Osorio moved to California a move that the local police knew about.  The local police resubmitted the case or charging about nine months later but again no charges were filed.  

Nearly five years later, in September 2012, the local police received a complaint that Mr. Osorio had sexually assaulted another of his minor daughters.  In May 2013, the state finally charged Mr. Osorio with two counts of criminal sexual conduct in the first degree.  He was not arrested until twenty-one months later, Februry 2015 during which the state knew exactly where Mr. Osoria was. Mr. Osorio moved to dismiss on Barker v. Wingo, 407 U.S. 514 (1972) speedy trial grounds.  The trial court dismissed the charges.  

Mr. Osorio wins the first of the four Barker factors, the length of delay. A twenty-one month delay is presumptively prejudicial. The second factor is the reason for the delay.  The state knew where to find Mr. Osorio during the twenty-one month delay; it just didn't bother to got get him. So, this negligence goes against the state. Two down, two to go.

The third factor is whether and when Mr. Osorio asserted his right to a speedy trial.  Here, the court issued a summons and complaint and mailed them to Mr. Osorio's address in California.  There is nothing of record to refute the presumption that Mr. Osorio got the letter.  Also, he did not claim that he did not get the letter.  This factor goes to the state.  The fourth factor is prejudice to Mr. Osorio that is due to the delay.  About the best that he could do was to speculate that some possibly exculpatory audio recordings had been lost or destroyed during the delay, but he could not establish that this loss or destruction was "due to the delay."  What was left was Mr. Osorio's inaction after he presumably got the summons and complaint.  This one also goes to the state.

To break the tie, the court looks to the seriousness of the alleged offense.  That tips the scales in the state's favor.

There Is No Threats Exception To Psychologist-Client Privilege Statute

State v. Expose, Jr., Minn.S.Ct., 12/9/2015.  This comes up from the court of appeals, read here.  During court-ordered anger management counseling, Mr. Expose, Jr. made threats against his child protection worker.  His counselor reported the threats and the state charged him with terroristic threats.  The state wanted to put the counselor on the stand to tell the jury what Mr. Expose, Jr. said. Mr. Expose, Jr. objected for two reasons:  first, prior to trial he said that the counselor was not a licensed psychologist and thus not subject to the statutory mandated reporter requirements.  Second, during trial he said that his statements to the counselor were privileged. The trial court rejected both those arguments.  The court of appeals reversed, saying that the therapist-client privilege prohibited the counselor from testifying about information she learned during the therapy sessions.  The court of appeals also said that there was no "threats exception" to the privilege.

Justice Stras, with Justices Wright and Hudson not participating, affirms the conclusion of the court of appeals that there is no "threats exception" to the privilege, but then says that the privilege does not extend to testimony of third parties, namely the person who the counselor told about Mr. Expose's threats.

But before Justice Stras gets there he detours to talk about whether the privilege objection made during trial had been timely.  The state said that Rule 10.01 required the defense to raise the privilege objection before trial.  Here's what the rule says:

[d]efenses, objections, issues, or requests that can be determined without trial on the merits must be made before trial by a motion to dismiss or to grant appropriate relief. The motion must include all defenses, objections, issues, and requests then available. Failure to include any of them in the motion constitutes waiver . . . .

Justice Stras rejects this waiver argument.  The rule, he says, applies to such things as challenges to the adequacy of a complaint because that can be determined by looking at the pleadings.  A privilege objection, on the other hand, is dependent upon what the witness is actually saying.  That is, is the counselor testifying to information or opinion acquired "in attending the client in a professional capacity."  Minn.Stat. 595.02, subd. 1(g).  So, Mr. Expose, Jr. didn't waive the privilege objection.

On the merits, Justice Stras, ever the strict constructionist, just can't find any words in the privilege statute that creates a "threats exception."  There are other exceptions in that statute but not for this.  The Justice was not willing to piggy-back the mandated reported statute to infer such an exception.

Employing that same strict constructionist approach the Justice cannot find any words in the privilege statute that excludes testimony from a third person to whom the counselor blabbed. Here, she told another person - her supervisor - of the treats because the counselor believed that she had a duty under the mandated reporter statute to do so.  Apparently the counselor's supervisor was neither a registered nurse, a psychologist, or a licensed social worker, who are the only professionals that the privilege statute covers.  The supervisor was thus a competent witness.

Even so, the court sends Mr. Expose's case back for a new trial because it could not say that the error in allowing the counselor to testify did not substantially influence the jury's verdict.  State v. Sanders, 775 N.W.2d 883 (Minn. 2009).

Trial Court Can Still Order Restitution Even Eight Years After Sentencing

State v. Andersen, Minn.S.Ct., 12/9/2015.  Mr. Andersen is serving a sentence of life without possibility of release from a June 2008 conviction. At the time of sentencing the court had left the question of restitution open for thirty days.  The state filed a restitution request within that thirty days but it took the court some eight years - October 2014 - to get around to granting that request.  After sentencing an attorney different from trial counsel filed a motion for a new trial but did not file a certificate of representation.  Trial counsel did not withdraw. The state served trial counsel with the restitution motion as well as Mr. Andersen.  No one filed a response to the motion for restitution.  Mr. Andersen thought that ordering restitution eight years after sentencing for a man who was never going to get out of prison was a bit harsh.

When the Department of Corrections got word of the restitution order in October 2014 it began to garnish his prison accounts.  Mr. Andersen filed a motion back with the trial court asking the court to take another look at the restitution business, to order DOC to return his money, and to appoint an attorney to represent him.  The trial court said no to the appointment of counsel; said that the state's service on Mr. Andersen's trial attorney was proper service; and said that Mr. Andersen was required to pay up.

Mr. Andersen made two challenges to the trial court's authority to order restitution.  First, he said that the state's service of the motion was not proper.  The trial court said that service on Mr. Andersen's trial attorney was effective to give Mr. Andersen notice.  Justice Diezten comes to the same conclusion; because trial counsel did not withdraw from representation - See Minn.Gen.R.Prac. 703 - the state's service on that attorney was effective even though by the time the state served its motion a different attorney had filed a motion for a new trial.  New trial attorney's failure to have filed a certificate of representation inured to the detriment of Mr. Andersen.  The court ducks the question whether the state's (additional) service of its restitution motion on Mr. Anderson personally was ineffective because he was represented by counsel.

Mr. Andersen's second challenge was, "Really? After eight years?" Justice Dietzen points out that the restitution statute does not set a deadline for the trial court to order restitution. So long as the statutory requirements are met the trial court can order restitution whenever it likes.  As to appointment of counsel, it's true that the court of appeals has said that a defendant has the right to counsel at a restitution hearing.  State v. Maddox, 825 N.W.2d 140 (Minn.Ct.App. 2013.)  Justice Dietzen ducks the question whether Maddox should be the law by concluding that whatever Mr. Andersen's motion to "resolve the restitution issue" was, it was not a restitution hear.  Finally, the court said that a motion to the district to order DOC to give Mr. Andersen back his money was not the correct way to go about challenging an administrative action. 

Substantive Due Process Does Not Require Rebuttable Presumption of Drug Contamination by St. Paul Crime Lab

State v. Hill, Minn.S.Ct., 12/9/2015.  The state charged Mr. Hill with aiding and abetting first degree sale of ten or more grams of methamphetamine.  Mr. Hill sold two bags of meth to a fellow who turned out to be a confidential informant.  The St. Paul crime lab weighed the two bags - the net weight was in excess of the requisite ten grams.  That lab then tested a small piece from each bag after which the remaining, untested contents of each bag were sealed up in a new evidence bag and subsequently sent over to the BCA for further testing. The BCA weighed the contents of each bag - still in excess of the requisite ten grams - and also tested the contents of each bag - still meth.

Mr. Hill objected to the introduction of the results of the BCA testing. He said that the BCA results that confirmed that the bags contained meth were unreliable because the contents of the bags might have been contaminated while they were in the custody of the St. Paul lab, investigation of which had uncovered deficiencies in its quality assurance controls.  Mr. Hill wanted the court to adopt a rebuttable presumption of contamination.  Chief Justice Gildea rejects that invitation for a unanimous six person court, newly installed Justice Hudson not participating.

Mr. Hill said that adoption of this rebuttable presumption was necessary to vindicate his right to substantive due process. Substantive due process protects an individual from "arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.  In re Lineham, 594 N.W.2d 867 (Minn. 1999).  The actions of the St. Paul crime lab must have either "shocked the conscience" or "interfered with rights implicit in the concept of ordered liberty" to violate substantive due process. It's a pretty high bar:  acts done with "deliberate and unjustifiable injurious intent", or the use of false evidence .  Given that both the St. Paul lab and the BCA determined that the stuff in the bags was meth, Mr. Hill couldn't really meet that standard.The St. Paul crime lab may have been inept in and ignorant about testing suspected controlled substances  but its heart was if not in the right place at least not proven to have been in the wrong place.  And, of course, had the court adopted a rebuttable presumption for the testing done by the crime lab it would have overturned hundreds and hundreds of previous convictions.

Mr. Hill's fall back position was that the court should adopt this rebuttable presumption under its supervisory powers to ensure the fair administration of justice.  For just about the same reasons the court also declines to do this as well.

Aiding Offender After the Fact Does Not Require That Offender Be Convicted of a Crime

State v. Townsend, Minn.Ct.App., 12/7/2015.  Mr. Townsend pled guilty to aiding an offender after the fact.  In between the plea and sentencing, the "offender" went to trial on a charge of first degree murder and got acquitted.  Oops. Mr. Townsend thought he should get his plea back, but both the trial court and the court of appeals say no.

It's a bit more complicated than that, of course.  Mr. Townsend had bought a gun off a Mr. Shufford.  Not long after, however, Mr. Shufford asked to borrow the gun back "because he intended to rob someone."  Mr. Townsend loaned him the gun.  Later that same day, Mr. Shufford reported to Mr. Townsend on the outcome of the robbery:  he'd had to "slump the guy."  Mr. Shufford showed Mr. Townsend and two other guys the dead body and the four of them then helped themselves to money from the deceased's wallet.

Mr. Townsend said that he couldn't be guilty of aiding an offender after the fact when the offender wasn't convicted of anything.  His plea, he said, was not accurate and thus invalid.  The statute in play, Minn.Stat. 609.495, subd. 3 says that:

“[w]hoever intentionally aids another person whom the actor knows or has reason to know has committed a criminal act, by destroying or concealing evidence of that crime, . . . [or] receiving the proceeds of that crime . . . is an accomplice after the fact.

The pattern jury instructions for aiding an offender after the fact require that the state prove that Mr. Shufford committed the crime of first degree murder.  Of course, the state utterly failed in that endeavor in Mr. Shufford's trial.  But, never mind about that because Mr. Townsend's plea colloquy in which he admitted the aforesaid facts gave him "reason to know" something that Mr. Shufford's jury did not know:  that Mr. Shufford had, committed first degree murder: 

Townsend admitted the following at the plea hearing: (1) he lent Shufford his gun because Shufford intended to rob someone; (2) Shufford told him that the robbery had gone “sour” and that he had to “slump” the victim; (3) Townsend went with Shufford to the site of the murder and Shufford showed him the dead victim in a car, saying that the victim is “not waking up” because Shufford “slumped him”; and (4) Townsend knew the gun had been used to kill the victim. These admitted facts “support a conclusion that defendant’s conduct falls within the charge to which he desires to plead guilty

The court of appeals readily admits that this is grossly unfair but somehow it declines to give Mr. Townsend back his guilty plea under either the more forgiving "fair and just" standard or the "manifest injustice" standard for withdrawal of a plea.

12/2/2015: No Supreme Court Published Criminal Opinions

Injury From Bullet Wound That Could Have But Didn't Cause "Great Bodily Harm" Does Not Support Assault First Degree Conviction

State v. Dye, Minn.Ct.App., 11/30/2015.  Mr. Dye shot E.G. in her lower back.  A CT scan showed that the bullet traveled in a straight line through eight inches of tissue into E.G.'s abdomen.  That was it; the bullet did not hit any organs much less "vital" ones.  After Mr. Dye shot her, he left; E.G. called 911.  When the cops arrived she was still on the phone with the 911 operator.  She was in pain but she managed to tell the officers what Mr. Dye was wearing, that he had left in a black car with his sister's kids, and that he was likely going to his baby mama's place.  The paramedics said that E.G. was able to walk, talk, and breath, and also said that there was no excessive external bleeding at the wound's entrance location.

The state charged Mr. Dye with first and second degree assault, and with unlawful possession of a firearm.  The jury convicted him of all three charges.

Mr. Dye said that there was insufficient evidence to have convicted him of assault in the first degree, which required proof of "great bodily harm."  This is defined as:

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

The state said that when Mr. Dye fired a bullet into E.G.'s torso that, alone, created a "high probability of death."  The court of appeals said, well, no, we've already rejected that theory back in 1992 in State v. Gerald, 486 N.W.2d 799 (Minn.Ct.App. 1992). There the court had said that just because the injury was located close to a major vein or artery and thus could have been more serious was not enough to prove "substantial bodily harm.  Rather, the injury, itself, must in fact be life-threatening.  So, because E.G.'s injury - determined by the bullet trajectory - did not hit any critical body parts that injury was not life threatening.  Nor was the injury encompassed within the catch-all language, "other serious bodily harm."  That requires that the court consider the totality of the victim's injuries.  For E.G. that meant a victim who was talking, walking, breathing, providing pertinent information to the cops, and being discharged a day later after doctors made a small incision to remove the bullet.

Mr. Dye also complained about the admission of E.G.'s 911 call and her initial statements to police even though she did not testify.  He said that this was a violation of his confrontation rights under Crawford.  The court rejects this assertion, concluding that the statements that E.G. made to the 911 operator were made to meet an ongoing emergency:

First, both the 911 call and the initial statements to officers were made within minutes of the shooting, while the shooter was still at large in the area. Second, at the time the statements were made, E.G. was in shock, crying, panicky, and appeared to be in significant pain from her recent gunshot wound. Third, the questions asked and answered were designed to address the ongoing emergency and to ascertain E.G.’s physical condition. Notably, the shooter fled the scene still armed with his sister’s children. Fourth, the statements were made in a frantic and non-tranquil environment. E.G. was scared and extremely concerned that the shooter would return and hurt her children.