A "Hazardous Substance" Only Includes Substances Actually Identified in the Pertinent Minnesota Rules

State v. Carson, Minn.S.Ct., 10/11/2017.  The problem with refusing to interpret statutes is that sometimes the results are pretty ridiculous.  A section of the DWI statutes makes it a crime to operate a motor vehicle while knowingly under the influence of a hazardous substance.  Minn.Stat. 169A.20, subd. 1(3).  A "hazardous substance" is defined as "any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health).  Not listed in these rules is something called "DFE" which it turns out is a propellant in those cans of compressed air used to clean keyboards and the like.  

Ms. Carson said that because DFE isn't listed in the rules it's not a "hazardous substance," and so she can't be convicted of driving under its influence.  Justice Hudson agrees and throws out the conviction.  The state, along with Justice McKeig, said, wait, there's more.  Another section of the rules contains a "list" of the relevant characteristics of hazardous substances, and DFE meets those characteristics.  Justice Hudson doesn't really answer the question just why the rules would contain a "list" of characteristics that make something a "hazardous substance" as well as a "list" of actual substances unless it meant for the "list" of actual substances to be aspirational rather than exclusive.  It can't possibly be that the legislature intended this result, but, again, the court has been out of the business of interpreting statutes far too long to care.

Conduct Alleged To Be "Disorderly" Need Not Be Witnessed By Another Person

State v. Janecek, Minn.Ct.App., 10/9/2017.  The court of appeals takes on the quantum question, if a tree falls in the forest and there's no one around to hear, does it make a sound?  Ms. Janecek doesn't get along with her neighbor.  The neighbor made a video recording of Ms. Janecek over their trash bins; the city charged Ms. Janecek with disorderly conduct based on the video - neither the neighbors nor anyone else was actually present - and a jury convicted her of disorderly conduct.

Ms. Janecek said that the disorderly conduct statute requires that her conduct be witnessed by at least one person; sorry, video cameras don't count.  Here's what the statute says:

Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

. . . .

(3) engage in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger or resentment in others.

Minn. Stat. § 609.72, subd. 1.

The court employs its literalist jurisprudence and cannot find any requirement in the statute that the disorderly conduct occur in another's presence.  The court does so notwithstanding this language from State v. Reynolds, 243 Minn. 196, 66 N.W.2d 886 (1954) which pretty plainly says just the opposite:

Conduct is “disorderly” in the ordinary sense when it is of such nature as to affect the peace and quiet of persons who may witness it and who may be disturbed or provoked to resentment thereby

A Testifying Defendant May Be Impeached by a Conviction That Occurred After the Charged Offense

State v. Souder, Minn.Ct.App., 9/25/2017.  The state charged Ms. Souder with criminal damage to property.  She testified.  The trial court permitted the state to impeach Ms. Souder under Evidence Rule 609 with a conviction (and its underlying conduct) that had occurred after her charged offense.  Here's what the pertinent part of the rule says:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

Does the phrase "has been convicted of a crime" refer only to convictions that occurred prior to the charged offense, or is its sweep broader to include convictions that occurred before the testimony being impeached?  Ms. Souder pointed out that in State v. Ihnot, 575 N.W.2d 581 (Minn. 1998) the court said that the ten year calculation ends on the date of the current charged offense.  On the other hand, the rule makes no distinction between a defendant witness and all other witnesses.  Ms. Souder's interpretation would suggest that the rule applies differently to these categories of witnesses which the court saw no reason to do.  So, Rule 609 does not preclude evidence of a criminal defendant's conviction from being admitted to impeach simply because the conviction and underlying offense occurred after the defendant's charged offense.

A "School Zone" Under Drug Laws Includes All City Blocks That Surround a School Property

Lapenotiere, Jr., v. State, Minn.Ct.App., 9/25/2017.  Selling drugs in a "school zone" is a second degree controlled substance offense. A "school zone" has two statutory definitions:  "the area surrounding the school property ... to a distance of 300 feet or one city block, whichever distance is greater."  Mr. Lapenotiere, Jr. sold drugs at his home.  It's the "one city block" that's in play; the state did not claim that Mr. Lapenotiere"s home was located within three hundred feet of the school property.

Mr. Lapenotiere, Jr. said that only those "city blocks" which share a border with the school property meet the statutory requirement.  Imagine - because I'm not able to reproduce it here - a 3x3 square which is divided into 9 smaller squares of equal size.  The "school property" is in the middle square.  Mr. Lapenotiere, Jr. said that only the four squares that touch the "school property" square count. Because his house is in the upper left square it doesn't count.  

Well, it's a clever argument but not a winning one.  The court says that all eight of the blocks in the 3x3 square meet the statutory requirement.  

No Retroactive Application of "New Rule" Announced in State v. Her

State v. Meger, Minn.S.Ct., 9/20, 2017.  Mr. Meger pleaded guilty to failure to register as a predatory offender in exchange for a downward departure sentence.  Because the sentence did not include a conditional release period, which should have been imposed because Mr. Meger was a risk-level III offender, the trial court eventually amended Mr. Meger's sentence to include a ten year conditional release period.  This was all going on back in 2006-07.  

Roughly nine or so years later the Minnesota Supreme Court said that the fact of being a risk-level III offender had either to be admitted by the defendant or found by a jury beyond a reasonable doubt before a court could impose this ten year conditional release period.  State v. Her, 862 N.W.2d 692 (Minn. 2015).  By this time, Mr. Meger had long since served his sentence and so his conviction was "final" for purposes of retroactivity jurisprudence.  He sought to have Her applied retroactively to his conditional release period.

Mr. Meger only argued that Her was an "old rule" which Teague says applies both to cases on direct review and to cases on collateral attack.  He said that this is so because Her is nothing more than an application of the Blakeley" decision -plead and prove the facts to get a longer sentence than would otherwise be the case -to the specific circumstances of Mr. Her. Justice McKeig says that, no,  that Her is a "new" rule and thus does not apply retroactively to a decision that is "final."  Teague v. Lane, 489 U.S. 288 (1989); Danforth v. State, 761 N.W.2d 483 (Minn. 2009).   After reviewing a bunch of cases she concludes:

Without the benefit of Descamps and Her, and considering our holdings in Allen, Henderson, and McFee, reasonable jurists at the time Meger’s amended sentence became final would not have felt compelled by existing precedent to rule in his favor on the question of whether an offender’s risk level falls within the prior-conviction exception. Accordingly, we conclude that Her is a new rule that is not retroactive to Meger’s amended sentence. See Butler, 494 U.S. at 415; Houston, 702 N.W.2d at 271.

Disturbing A Meeting Section of Disorderly Conduct Statute Is Facially Unconstitutional Under First Amentment

State v. Hensel, Minn.S.Ct., 9/13/2017.  So far September has been David Stras month up at the Judicial Center.  Elsewhere too, for that matter and a rather destructive one at that.  Last week the Justice delivered a near-fatal blow to the "rule of lenity;" here, the Justice throws out a portion of the disorderly conduct statute, saying that it is facially unconstitutional under the First Amendment.  In doing so the court reverses the court of appeals and draws a dissent from two of three dissenters from the previous week:  Justice G. Barry Anderson and the Chief Justice. 

At the first of two meetings of the Little Falls City Council Ms. Hensel, sitting in the front row, held up signs which displayed dead and deformed children.  The signs, one of which was on her head, obstructed the view of those seated behind her.  Eventually, even though those whose view was obstructed were invited to sit in some chairs that were normally not used during council meetings, the council adjourned prematurely.  At the next meeting Ms. Hensel moved a chair into a sort of DMZ between the public seating area and the dais where the council sat.  She refused multiple requests to return to the general seating area, during which she had words with the city attorney among others.  When she persisted in not moving back to the general seating area an officer escorted her out of the room.

Whereupon the state charged Ms. Hensel under a section of the disorderly conduct statute that says:

Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

. . .

(2) disturbs an assembly or meeting, not unlawful in its character . . . .

Justice Stras concluded that this statute is "broad and unambiguous, prohibiting any conduct or speech that 'disturbs an assembly or meeting,' whether expressive or not."  Raising one's voice would be enough to violate the statute (as in, say, a heated cross examination or an argument around the dinner table with an unruly child).  After hauling out the dictionaries to define various words in the statute the Justice sums up: 

Combining its component parts, the statute prohibits any activity, whether expressive or not, that “interferes with” or destroys the “tranquility” of any lawful “gathering of people” who share a common purpose or reason for gathering, so long as the individual knows, or has reason to know, that the activity will, or will tend to, disturb others. Minn. Stat. § 609.72, subd. 1(2). This statute presents us with a “criminal prohibition of alarming breadth.” Stevens, 559 U.S. at 474. It criminalizes a public speech that “criticize[s] various political and racial groups . . . as inimical to the nation’s welfare.” Terminiello v. City of Chicago, 337 U.S. 1, 3 (1949). It prohibits an individual from wearing a jacket containing an offensive inscription to a meeting. See Cohen v. California, 403 U.S. 15, 16 (1971). And certainly, it would forbid someone from burning the American flag on a public street. See Texas v. Johnson, 491 U.S. 397, 399 (1989). 

The statute thus facially violates the First Amendment overbreadth doctrine.  The Justice was unwilling to narrow the statute to survive this facial infirmity and so the court wipes it off the books.  Justice B. Barry Anderson, joined by the Chief Justice, wrote in dissent that the statute could be saved by a narrowing construction that only punished conduct and not speech.  

Court Strikes Death Blow to "Rule of Lenity"

State v. Thonesavanh, Minn.S.Ct., 9/6/20177.  At first blush this is a garden variety motor vehicle theft case but with an urban paranoid twist.  What it's really about is the gutting of the rule of lenity in criminal cases.

J.V. started up his car and left it running in his driveway before departing for work.  Mr. Thonesavanh knocked on J.V.'s door; instead of answering the door J.V. called the cops.  The cops found Mr. Thonesavanh sitting in J.V.'s car, doors locked and the rear lights illuminated.  The state charged Mr. Thonesavanh with motor vehicle theft:

(a) Whoever does any of the following commits theft . . . :

. . .

(17) takes or drives a motor vehicle without the consent of the owner or an authorized agent of the owner, knowing or having reason to know that the owner or an authorized agent of the owner did not give consent . . . .

Minn. Stat. § 609.52, subd. 2(a)(17) (emphasis added).

No one said that Mr. Thonesavanh drove J.V.'s car so the fight was over whether he took it.  The trial judge and the court of appeals said that he didn't take the car; all seven of the Justices disagreed with that conclusion.  But, again, that's not what the case is about.

Justice Stras, fresh off Senator Frankin's rebuff of the Justice's nomination for a seat on the already ultra-conservative Eighth Circuit Court of Appeals, hauls out the dictionaries as well as the rules of English grammar to determine that, indeed, Mr. Thonesavanh took J.V.'s car. There are, it turns out, sixty-one definitions of the word "take" when it's used as a transitive verb. Yes, the Justice believes, somewhat skeptically - read footnote 2 - that the legislature knows what a transitive verb is. Not all of these definitions were even remotely the same.  Some of these sixty-one transitive verb definitions require movement - "to carry in one's possession" - and some do not - "to seize with authority or legal right". This being a theft statute, the Justice eliminates sixty of the transitive verb definitions of "take" and goes with "to carry in one's possession." Or, to possess the car "adversely."

So, Mr. Thonesavanh took J.V.'s car by sitting in it behind the wheel with the door locked and the rear lights illuminated.  

That could have been the end of things but wait there's more. Justice Stras's real objective here is to knock the legs out from under the "rule of lenity,"  which requires a court to construe an ambiguous criminal statute in favor of a defendant.  The court of appeals, after having hauled out its dictionaries and settling on a different transitive verb definition of "take," one that does require movement, had relied upon this rule to affirm the trial court's dismissal of the motor vehicle theft charge. Justice Stras admits that application of the rule of lenity would mean that Mr. Thonesavanh wins, something he and the majority weren't willing to allow.  So, he throws up two by and large insurmountable impediments to its application.  First he announces, despite previous Minnesota cases to the contrary, that the rule of lenity is a rule of last resort.  Only after you've considered any and all other "canons of construction" without success can a court resort to this rule.  Second he adopts an extremely harsh definition of that rule:

“[T]he rule of lenity . . . applies to the interpretation of criminal statutes when ‘a grievous ambiguity or uncertainty in the statute’ remains after we have considered other canons of construction."

Not just any old ambiguity will do; it must be a "grievous" one. 

Justice G. Barry Anderson dissented.  He said that the theft statute was not ambiguous and thus there was no need to dive into the definition and application of the rule of lenity.  He found that the statute did not require movement of the vehicle.  On the rule of lenity he thought that Justice Stras was playing a bit fast and loose with prior case law:

Even when we have described the rule of lenity as one of last resort, we have rarely ruled against the defendant when presented with an ambiguous criminal statute. See, e.g., Nelson, 842 N.W.2d at 444; State v. Rick, 835 N.W.2d 478, 485-87 (Minn. 2013) (holding that the communicable-disease statute was ambiguous, and ruling for the defendant based on the rule of lenity and relevant legislative history); State v. Leathers, 799 N.W.2d 606, 611 (Minn. 2011) (ruling for the defendant in light of an ambiguous criminal statute based on the doctrine of in pari materia and the rule of lenity). The court cites only two instances in which we have ruled against a defendant when a criminal statute was ambiguous. First, in State v. Sullivan, we held that there was “some ambiguity” in the statute and we resolved that ambiguity in favor of the State by reading the statute as a whole. 71 N.W.2d 895, 900 (Minn. 1955). But because we never discussed the rule of lenity, Sullivan is of little help here. Second, in State v. Al-Naseer, we were presented with five possible interpretations of the statute: two that the State supported, one that the district court applied, one that the defendant advocated, and one that the court of appeals applied. 734 N.W.2d 679, 684 (Minn. 2007). Although the court is correct that we ruled in favor of the State because we accepted one of the State’s proposed interpretations, we did not adopt the least defendant friendly of the options. Id. at 685-89. In fact, we used the rule of lenity to reject the more extreme interpretation supported by the State. Id. at 685-86.

Getting to the level of ambiguity required Justice Anderson points out that SCOTUS has supplied at least four different answers to that question.  "These varying articulations of when the rule of lenity applies are not merely different ways of saying the same thing—the outcome of a particular case often depends on which formulation of the rule the Court employs. See Daniel Ortner, The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus Linguistics, 25 B.U. Pub. Int. L.J. 101, 105 (2016). He concludes with this biting observation:

We need not decide here which option for either of these issues is best. I point out only that the court has arguably chosen the least defendant-friendly option for both the rule of lenity’s position among other interpretive aids and the amount of ambiguity that must exist for the rule of lenity to apply. The result is a rule of lenity that will rarely apply

Chief Justice Gildea joined Justice G. Barry Anderson's dissent. Justice Chutich joined so much of that dissent that concluded that the statute was unambiguous and did not require movement.

Continuance Without Adjudication Authorizes Juvenile Court to Order Restitution

In the Matter of the Welfare of I.N.A., Child, Minn.Ct.App., 9/5/2017.   I.N.A. pleaded guilty to criminal damage to property. The juvenile court continued the case without adjudication, imposing various conditions, one of which was to pay restitution in excess of twelve grand.  

On appeal, I.N.A. argued that when the juvenile court does not adjudicate delinquency it does not have statutory authority to order restitution as a condition of the continuance without adjudication. There are multiple statutes that get put in play to answer this question.  The juvenile delinquency restitution statute says:

If the court finds that the child is delinquent, it shall enter an order making any of the following dispositions of the case which are deemed necessary to the rehabilitation of the child:

. . . .

(5) if the child is found to have violated a state or local law or ordinance which has resulted in damage to the person or property of another, the court may order the child to make reasonable restitution for such damage[.]

Minn. Stat. § 260B.198, subd. 1 (2016). 

During a continuance without adjudication the juvenile court can also order restitution.  Minn.Stat. 260B.198, subd. 7(a).  Finally, the general restitution statute says:

“A victim of a crime has the right to receive restitution as part of the disposition of a criminal charge or juvenile delinquency proceeding against the offender if the offender is convicted or found delinquent.” Minn. Stat. § 611A.04, subd. 1 (emphasis added). 

The court of appeals goes with subdivision 7 and concludes that even when the juvenile court continues a child's case without a finding of delinquency it retains the authority to pay reasonable restitution.

Having reached that conclusion, the court also determined that the juvenile court did not make adequate findings to support the disposition:

The district court found that ordering I.N.A. to pay “smaller” monthly installments of restitution “serves to rehabilitate [I.N.A.] by demonstrating the amount of time and money that goes into maintaining our cities’ public park systems.” While this may be an implicit finding regarding “why public safety and the best interests of the child are served by the disposition ordered,” it is not an explicit written finding addressing the statutory factors. Further, the district court did not explicitly discuss in its written order what alternative dispositions were recommended to the court and why such recommendations were not ordered. 

The court also determined that the juvenile court had not adequately explored I.N.A.'s ability to pay the twelve grand:

We cannot determine based on the record and restitution order before us whether the district court abused its discretion by making a finding unsupported by the evidence or against logic and the facts on record, because the order is unclear as to how much the district court expects I.N.A. to actually pay per month, and over what period of time. By ordering “smaller monthly installments,” we are unsure whether the district court meant that the total $12,529.90 would be divided up equally into smaller payments during I.N.A.’s continuance without adjudication, or whether the court meant to require I.N.A. to pay small, good-faith installments during the stay-of-adjudication period.3 The difference between these two dispositions is substantial, particularly for a child in I.N.A.’s situation, and additional findings would aid our analysis of whether the district court fully considered I.N.A.’s income, resources, and obligations to pay such restitution. Further, if the district court meant “small” good-faith payments, and a balance would remain after the stay of adjudication, it is unclear if the court anticipated that this balance would be docketed as a civil judgment against I.N.A. pursuant to Minn. Stat. § 611A.04, subds. 1(c), 3 (2016). If a civil judgment is to be docketed, the record and restitution order does not indicate whether the district court considered the lasting impact that such a large judgment could have on I.N.A. in the future.

Warrantless Dog Sniff From Common Hallway Of Apartment Door Violated Both Fourth Amendment And State Constitution

State v. Edstrom, Minn.Ct.App., 9/5/2017.  Police got a tip that Mr. Edstrom was selling methamphetamine our of an apartment in Brooklyn Park.  An investigator did some due diligence on the tip - he apparently did not establish whether the informant had provided reliable information in the past - and then invited another officer to bring over his narcotics sniffing dog to the common hallway of the third floor of the apartment building that the informant had specified.  The dog came over and commenced sniffing the apartment doors. 

This apartment building is secured but management graciously provides a key to the local constabulary so that they can get into the building.  The dog got a hit on one and only one of the third floor apartment doors. The officers then sought and obtained a search warrant for this apartment and found inside a bunch of methamphetamine, multiple firearms, etc. The state charged Mr. Edstrom, who was inside the apartment at the time of the execution of the search warrant with a host of drug and firearms charges.  He moved to suppress all that evidence, saying two things:  first, that the search warrant was the product of an unconstitutional dog sniff of the outside of the apartment door; and second, that the door to the apartment was "curtilage" for which he had a reasonable expectation of privacy.  The trial court denied the motion, concluding that the officer had a legitimate reason to be in the common hallway on the third floor and that the area immediately outside an apartment door in a common hallway is not "curtilage".

Mr. Edstrom did not complain about the use of management's key to get into the apartment building.  Rather, his complaint was about the dog sniffing outside his apartment door.  He pointed out that SCOTUS has said that a home's front porch fit the definition of a "curtilage" and that this is no different. Florida v. Jardines, 569 U.S. 1 (2013). The court of appeals reminded Mr. Edstrom that it had concluded in State v. Luhm, 880 N.W.2d 606 (Minn.Ct.App., 2016), that the area immediately outside a resident's door in a secured, multi-unit condominium was not "curtilage."  That being the case, the court rejected Mr. Edstrom's property rights argument and turned to his expectation of privacy argument.

Jardines did not address the privacy argument, but Justice Kagan did in her concurrence, concluding that the warrantless use of a narcotics dog did violate privacy rights.  The court keyed off this concurrence to conclude that the warrantless "intrusion" as it were by the dog sniff violated Mr. Edstrom's legitimate expectation of privacy.  The court also relied upon a Seventh Circuit case that came to the same conclusion, United States v. Whitaker, 820 F.3d 849 (7th Cir. 2016).  The court also determined that the state's comparable Fourth Amendment constitutional provision was also violated.

Predatory Offender Statute Is Not Penal And Thus Does Not Implicate Fifth Amedment

State v. LaFountain, Minn.Ct.App., 8/28/2017.  Mr. LaFountain is required to register under Minnesota's predatory offender registration laws.  In October, 2015 he was convicted of violating those registration requirements but that's not what this case is about.  Keep reading. About three weeks after this conviction local sheriff's deputies confirmed that Mr. LaFountain no longer lived at the address he'd given to the registry officials, and that he no longer worked for the employer that he'd listed with them.

A week later Mr. LaFountain showed up at the local law enforcement center and told them that he needed to update his registration information.  The deputy pulled up the file and noticed that Mr. LaFountain was out of compliance and had been out of compliance for some time.  The deputy asked Mr. LaFountain what was up that that;  Mr. LaFountain essentially confessed, stating that he understood the registration requirements generally, and he knew that he was supposed to have updated his address within five days of changing it. He went on to tell the deputy some explanation that he'd been evicted from his registered address but still had some stuff there and didn't get everything out until just a day or so ago.The deputy then told Mr. LaFountain that the county attorney had already been sent a report about his noncompliance.

Sure enough the state charged Mr. LaFountain with failure to register. He moved to suppress the statements that he'd made to the deputy when he had gone down to update his registration information.  He said that those statements had been made in violation of his Fifth Amendment privilege against self incrimination.  The trial court denied this motion, saying that the predatory registration statute was civil and regulatory, rather than penal, and so no Fifth Amendment privilege was implicated.

The court of appeals continues to say that the registration statute is not a criminal statute.  The court reviews the tortured history of Minnesota's registration statute, and its interpretation.  Although not implicating the Fifth Amendment the Minnesota Supreme Court has two times said that the registration statute is not penal: Boutin v. LaFleur, 591 N.W.2d 711; Kaiser v. State, 641 N.W.2d 900 (Minn. 2002); and the U.S. Supreme Court has reached the same conclusion in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140.

But, Mr. LaFountain said, look at State v. Jones, 729 N.W.2d 1 (Minn. 2007), where the court said that Minnesota could prosecute an enrolled tribal member for failure to register even when that offense occurred on that member's reservation.  The court reached this conclusion by saying that the registration statute was "criminal/prohibitory" and not "civil/regulatory."  Although Mr. LaFountain thought he had the court on this, he didn't:

We acknowledge that our use in Boutin and Kaiser of the terms “punitive”—which we used interchangeably with “criminal”—and “civil, regulatory” could cause confusion in our analysis under the Cabazon/Stone test, which distinguishes conduct that is “criminal/prohibitory” from that which is “civil/regulatory.” But “punitive” is not the same as “prohibitory,” and the definition of “regulatory” under the [Mendoza-Martinez] analysis of Boutin and Kaiser does not have the same meaning as “regulatory” employed by Pub. L. 280 and Cabazon.  

Not only that, more recently, the court pointed out that the Minnesota Supreme Court had recently declined to overrule Kaiser and concluded that a defense attorney's failure to advise a defendant about predatory registration requirements before entry of a guilty plea did not violate a defendant's right to effective assistance of counsel.  Taylor v. State, 887 N.W.2d 821, 825 (Minn. 2016).  Minnesota continues to adhere to the "collateral consequences" dichotomy and registration is one of those "collateral consequences."

Mr. LaFountain also argued that the registration statute compelled him either to provide information or face a criminal charge for failing to do so and thus his answers were compelled in violation of the Fifth Amendment.  The trial court, however, had made a finding that Mr. LaFountain's statements were voluntary and so there was no compulsion:

We therefore conclude that LaFountain’s statements to the investigator are not compelled for Fifth-Amendment purposes, and his voluntary decision to speak to the investigator does not implicate a privilege against self-incrimination

Even in A Bench Trial A Defendant Must Be Afforded An Opportunity To Wear Street Clothes

State v. Hazley, Minn.Ct.App., 8/28/2017.  Mr. Hazley waived his right to a jury trial.  The previous day, before he'd done that, the trial judge told him that he would "have to be out of [his] jail clothes" during the jury trial.  There was no further discussion of trial attire and Mr. Hazley appeared before the trial judge in his jail jump suit.  The trial judge found him guilty of third degree burglary.  Mr. Hazley said on appeal - not during trial so this is a "plain error" review - that he was entitled to a new trial because he'd had to wear his jail jumpsuit during the bench trial.

Mr. Hazley said that this was so both on constitutional and criminal rules arguments.  Compelling a defendant to wear jail clothes at trial is a due process violation.  Estelle v. Williams, 425 U.S. 501 (1976); State v. Lehman, 749 N.W.2d 76 (Minn.Ct.App. 2008), reviewed denied (Minn. Aug. 5, 2008).  A defendant must, however, object to wearing jail clothes at trial, which Mr. Hazley didn't do.  For that reason, there was no error, one of the requirements under "plain error" so he cannot prevail on his due process claim.

The criminal rules are another matter.  The pertinent rule says that  “[d]uring trial, an incarcerated defendant or witness must not appear in court in the distinctive attire of a prisoner.” Minn. R. Crim. P. 26.03, subd. 2(b).  The rule make no distinction between a jury trial and a bench trial and so the court construes it to apply to both.  For Mr. Hazley, however, there is no prejudice to his appearance in jail clothes because the fact finder - the judge - already know that Mr. Hazley was in custody.

The takeaway here is that even for a bench trial a defendant must be affirmatively asked whether she wants to appear in jail or street clothes.  

No Error in Jury Instruction on Accomplice Liability

State v. Smith, Minn.Ct.App., 8/21/2017.A jury convicted Ms. Smith of various counts of aiding and abetting crimes:  second degree assault, third degree assault, and simple robbery.  She complained on appeal that the trial court had given an erroneous instruction on accomplice liability and should get a new trial.

Ms. Smith and a Mr. McKee came to the home of N.N. and A.M. Upon entry, Mr. McKee pulled a bandana over his face and struck N.N. three times in the head.  A.M. said that Ms. Smith was blocking her way so that she could not get past her during the assault.  Ms. Smith and Mr. McKee then went into a bedroom where they found J.F.; A.M. gave Mr. McKee her money, prescription pills and her cell phone;  Mr. McKee and Ms. Smith then left.

Ms. Smith's instructions error focused on the requirement that the state prove that she had "intentionally aided" Mr. McKee.  The trial court instructed the jury that the state had to prove that Ms. Smith "knew her alleged accomplices were going to or were committing a crime."  Ms. Smith argued that the instruction should have been that she knew that Mr. McKee "was going to commit" a crime.  She relies upon a series of opinions that contained this "was going to commit" language:  State v. Huber, 877 N.W.2d 519 (Minn. 2016); State v. Kelley, 855 N.W.2d 269 (Minn. 2014); State v. Bahtuoh, 840 N.W.2d 804 (Minn. 2013); State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007).  

Under a "plain error" analysis the court of appeals can ignore what these opinions had said.  The court emphasized that the trial court still has considerable discretion in drafting jury instructions and that these instructions adequately got the point across to the jury correctly.  In sum, the court said:

A defendant who acquires the requisite knowledge while the accomplice is in the process of committing the offense, and makes the choice to aid in its commission either through her presence or her actions, is guilty as an accomplice under the plain language of Minn. Stat. § 609.05. 

A House Is Not a "Fixture"

State v. Larsen, Minn.Ct.App., 8/21/2017.  Mr. Larsen, driving drunk, drove his car into the side of a house, and into an unattended car.  Mr. Larsen's alcohol concentration was 0.253.  A jury convicted him of felony driving while impaired, failing to notify the owner of the collision with the unattended car, and failing to notify the owner of the damaged house.  

Among other things, Mr. Larsen said on appeal that the duty to notify the property owner of damage only applied to damage to fixtures.  Here's what the statute says:

If the driver of any vehicle involved in a collision knows or has reason to know the collision resulted only in damage to fixtures legally upon or adjacent to a highway, the driver shall take reasonable steps to locate and notify the owner or person in charge of the property of that fact.

Minn.Stat. 169.09, subd. 5.  The state actually agreed with Mr. Larsen that a house was not a "fixture."  Nonetheless, the court of appeals devotes five plus pages, and four really long footnotes, to come to the same conclusion.

The court also rejected Mr. Larsen's claim that the state had not presented sufficient evidence that he had been driving the car (he admitted the same).  And, the court assumed, without deciding that the trial court had erred by not giving the jury an instruction on eye witness identification.  At trial Mr. Larsen had neither requested this instruction nor objection to its omission so it's "plain error" time for the court of appeals.

Court Rejects Batson Challenge Because Defense Could Not Establish Prima Facie Showing That Peremptory Strike Was Racially Motivated

State v. Wilson, Minn.S.Ct., 8/16, 2017.  A jury convicted Mr. Wilson of first degree premeditated murder on an accomplice liability theory for his involvement of Anthony Fairbanks. One of his codefendants had already been tried and convicted, about which you can read here.  On appeal Mr. Wilson raised a Batson issue and an evidentiary issue.

The court yet again rejects a Batson juror challenge.  Mr. Wilson did not survive the first requirement of establishing a valid Batson challenge, that the state had exercised a peremptory challenge against a prospective juror - identified only as "Juror 29" - on the basis of race. Here's the gist of what Juror 29 had to say during voir dire:

1. Although married to a prosecutor, Juror 29 said that he and his spouse "have their own views and that they debate about the law and the judicial system.  He said that his spouse had been involved in a trial of a Minneapolis police officer two weeks earlier and that he had been disappointed in the outcome.
2. Three years earlier a St. Paul officer pulled a gun on Juror 29 as he was sitting in his parked car preparing for a job interview. When Juror 29 explained to the officer what he was doing the officer apologized and went on his way.
3. Juror 29 said in his questionnaire that in theory the criminal justice system works fine but "not so much in practice."  He elaborated on this during questioning that “I think maybe we incarcerate more people than any other country in the world, disproportionate amount of those are African American.” Juror 29 further stated that, as a juror, “for the system to work well, it would be incumbent upon me to be . . . non-partial, not biased, to have an open mind about the evidence, both sides of the evidence and to . . . withhold any sort of opinion I had until all the evidence [has] kind of been submitted and heard.”  
4. Juror 29 stated that he did not believe that his views on the disproportionate incarceration rate Black me would not impact how he viewed a criminal case if he wee on a jury.
5. Juror 29 said that it was view that society was largely divided based on race and that it would be a "stretch to think that 12 people would be completely impartial going into a jury trial."

Justice G. Barry Anderson affirms the trial court's conclusion that Mr. Wilson had not shown that the state's peremptory challenge to Juror 29 had been racially motivated.  The Justice emphasized the "great discretion" afforded trial judges in making these determinations, and that just as it was not an abuse of discretion for the trial judge here to rejected the challenge neither would it have been an abuse of discretion had the trial court come to the opposite conclusion:

Taking these facts into consideration, and given the low bar for Wilson to establish a prima facie showing of an inference of discrimination, it likely would not have been error for the district court to conclude that Wilson had established a prima facie showing of discrimination. But neither was it error for the district court to conclude that Wilson failed to make a prima facie showing of discrimination. We must give “great deference” to the district court’s determination...

Police found the murder weapon in a storage locker rented to an alleged accomplice.  Mr. Wilson wanted to argue to the jury that drug dealers, which the accomplice apparently was, knew to keep their stash separate from their weapons so that's why the gun was in that storage locker.  Drug dealers knew this, the defense wanted to argue, because they also knew that the penalties for drug crimes where guns were involved were significantly higher.  The problem for Mr. Wilson was that he had no evidence to present in support of these assertions so when the state moved to exclude any further talk about this the trial court agreed.  The state said, and the trial judge agreed, that Mr. Wilson had no evidence that either of the accomplices to Mr. Fairbanks' death knew about the consequences that would result from keeping drugs and guns in the same place. Justice G. Barry Anderson agrees with the trial court's ruling, concluding that there was no abuse of discretion in the ruling because such evidence was irrelevant.

"Minor or Passive" Role Supports Dispositional Departure

State v. Stempfley, Minn.S.Ct., 8/16, 2017.  A jury found Mr. Stempfley guilty of third and fourth degree criminal sexual conduct on an accomplice liability theory.  After a lot of drinking B.D., age fourteen, Tina Smith, age twenty-four, and Mr. Stempfley, age thirty eight, found themselves late at night in a one room cabin in the woods. 

There was more drinking and memory and accounts of events started to diverge.  B.D. said that Tina Smith got on top of her, began kissing her, pulled her pants down and engaged in oral sex. B. D. also said that while this was going on Mr. Stempfley held one or both of her hands and penetrated her vagina with his fingers. While Mr. Stempfley continued holding B.D.'s hand. B.D. said that Tina penetrated her vagina with her tongue.

As might be expected, everyone's account got impeached.  B.D. had previously admitted that she didn't remember much of what had happened.  Tina Smith said that B.D. removed her own clothes and willingly participated in their kissing.  Tina had said at trial that when she engaged in oral sex with B.D. she asked Mr. Stempfley to grab B.D.'s arms, which he did.  Tina had previously stated that Mr. Stempfley had not held B.D.'s arms during the oral sex.  

And so on.

The jury acquitted Mr. Stempfley of the counts which charged him as a principal.  At sentencing he moved for a dispositional departure, arguing that he had played a "minor or passive role" in the (Smith) offenses and that he was particularly amenable to probation.  Inexplicably, the state did not dispute that what sounds like offense based reasons were a valid basis for a dispositional departure.  Instead, it argued both that the trial court had not made adequate findings and that even if it did those findings didn't support the departure.  Here's what Justice Chutich said about that:

When we compare Stempfley’s role to that of Smith, the record supports the district court’s finding that Stempfley played a minor role here. Smith was the one who started drinking with B.D., invited B.D. to the cabin, and initiated the sexual penetration that is the basis for Stempfley’s conviction. Stempfley’s conduct—not objecting to B.D.’s visit to the cabin or her drinking and holding one or both of B.D.’s hands—was comparatively minor. According to Smith’s testimony and the jury’s verdict, Stempfley did not have any sexual contact with B.D. Nor did he prompt or encourage Smith to begin sexual contact with B.D. Smith testified that Stempfley did not become involved in Smith’s sexual penetration of B.D. until Smith asked him to hold B.D.’s hand, which is consistent with a finding of passivity. These facts are sufficient to support the conclusion that Stempfley’s offense was significantly less serious than the typical case. 

That last sentence is more typically what gets said to support a durational departure, rather than a dispositional departure.  

The court was quick to emphasize that one's status as an accomplice is not enough to support a departure.  "As the law requires, the district court's departure analysis focused on the facts of this particular case." Summing up, Justice Chutich said:

In sum, we are bound to uphold the district court’s evaluation of the facts and its discretionary sentencing decision unless our review of the record reveals an abuse of that discretion. Applying this deferential standard, we conclude that the district court acted within its broad discretion here. The trial testimony is conflicting and must be interpreted in light of the jury’s verdict, which rejected a large portion of the State’s case. Without the benefit of observing witness testimony and the opportunity to weigh credibility, we cannot say that the district court abused its discretion by finding that Stempfley’s minor or passive role in the offense was a substantial and compelling reason to depart from the Guidelines. Even if we might have come to a different conclusion had we been weighing the evidence ourselves, that is not the applicable standard upon appellate review.

Justice McKeig took no part.  Justice Hudson dissented.  She took umbrage at what the trial court said supported the departure, and how the court said it, remarks that she characterized as "colloquial and offhand comments":

[T]he district court made three statements that Stempfley contends support his dispositional departure: Smith “was the primary aggressor,” Smith “was the one that got things going,” and “basically the train had already left the station” when Stempfley got involved.

Covering the bases, Justice Hudson also said that even if these "colloquial and offhand remarks" constituted sufficient findings they still didn't support the departure.  These findings, if they were "findings," did not amount to the "substantial and compelling" circumstances to support either that Mr. Stempfley played a minor or passive role or that his offense conduct was less serious than the typical case.  As Justice Hudson saw it: 

Stempfley’s intervention, particularly as an adult male aiding and abetting the sexual assault of a child, cannot constitute a minor or passive role.

.....

 [T]he majority’s exclusive focus on why Stempfley’s conduct was minor or passive solely in comparison to Smith’s conduct misses the mark. Without evidence in the record demonstrating why this case is different from the typical case of aiding and abetting a sexual crime—and not merely that Stempfley’s conduct was different than Smith’s—the dispositional departure is unsupported by the record.

Finally, Justice Hudson is annoyed and concerned by the majority's failure to address the typical dispositional departure question, "Is Mr. Stempfley particularly amenable to probation?"  She's worried that by its silence on this question, the court has surely left itself open to the claim that playing a "minor or passive" role is itself sufficient to support a dispositional departure.  If nothing else, the majority's silence muddies the waters on what's fair game to argue in support of a dispositional departure.  

Whether An Out of State Juvenile Conviction Would Have Been Certified For Adult Prosecution in Minnesota Is Not a Blakely Jury Question

State v. Edwards, Minn.Ct.App., 8/14/2017.  A jury convicted Mr. Edwards of second degree assault.  Mr. Edwards complained on appeal that the trial judge had screwed up the jury instructions by omitting the statutory definitions of "great bodily harm" and "bodily harm".  He had not, however, made that complaint during trial so the court of appeals applies the "plain error" standard of review to reject this assertion. The court of appeals jumped straight to the third part of the "plain error" test, whether any error affected Mr. Edwards' substantial rights.  The court said, no, it didn't.

The trial court included two juvenile convictions from Wisconsin in computing Mr. Edwards' criminal history score.  The Guidelines require that the "fact finder" determine whether those juvenile convictions would have been certified for adult prosecution in Minnesota.  Mr. Edwards said that this question needed to be put to a jury under Blakely because it was a "fact" which increased the penalty for the crime beyond the prescribed statutory maximum. The court of appeals said, no, this comes under the prior conviction exception to Blakely and may be determined by the judge.  The court said that the trial court can make this determination because the fact of the prior convictions is not an element of the new crime. Whether a juvenile conviction from another state would have been certified for adult prosecution in Minnesota is also a legal question and not a "fact" question (like did Mr. Edwards have a knife when the comitted the assault).  

State v. Provost, Minn.Ct.App., 8/14/207.  This is a sentencing appeal. The state's position was that it knew that the trial judge got it wrong, but, hey, it doesn't matter, you should still affirm what everyone knew was an illegal sentence.  Here's the deal.

Mr. Provost pleaded guilty to second degree burglary.  Based upon a criminal history score of six the trial judge gave him a middle of the box sentence of forty-eight months.  That was correct at the time.  But then, Mr. Provost got the benefit of State v. Haywood, the air-powered BB gun case.  This knocked a point and a half off Mr. Provost's criminal history score.  So, he sojourned back to the burglary judge and asked for a redo on that sentence.  The burglary judge summarily denied that request.

The burglary judge told Mr. Provost, look, because of the overlap in the grid boxes the forty-eight month sentence was an authorized sentence regardless of the Haywood victory.  The court of appeals responds, no, no, an illegal sentence is an illegal sentence:

The Minnesota Supreme Court has held that a district court “must use accurate criminal history scores in order to set mandatory presumptive sentences that comply with the Minnesota Sentencing Guidelines.” State v. Maurstad, 733 N.W.2d 141, 142 (Minn. 2007). Because of this requirement, the supreme court has stated that any “sentence based on an incorrect criminal history score is an illegal sentence” that is “correctable ‘at any time.’” Id. at 147 (quoting Minn. R. Crim. P. 27.03, subd. 9). Under Maurstad, Provost’s sentence is not authorized by law, and the district court did not properly exercise its discretion when it concluded that it lacked the authority to modify his sentence. 

The court of appeals sent the case back to the burglary judge with instructions for that court to do its job:  exercise its discretion, utilizing a correct criminal history score, to determine Mr. Provost's sentence.

A Conservator Is Not a "Victim" For Purposes of Seeking Restitution

State v. Christensen, Minn.Ct.App., 8/7/2017.  Mr. Christensen stole a bunch of money from his uncle, A.C., a vulnerable adult. Lutheran Social Services was A.C.'s conservator.  Following Mr. Christensen's conviction, Lutheran Social Services, but for some unexplained reason not A.C.'s guardian, made a request for restitution on behalf of A.C.  Mr. Christensen said that a conservator was not a "victim" entitled to restitution.  Here's what the statute says about who is a "victim":

“Victim” means a natural person who incurs loss or harm as a result of a crime, including a good faith effort to prevent a crime, and for purposes of sections 611A.04 and 611A.045, also includes (1) a corporation that incurs loss or harm as a result of a crime, (2) a government entity that incurs loss or harm as a result of a crime, and (3) any other entity authorized to receive restitution under section 609.10 or 609.125. The term “victim” includes the family members, guardian, or custodian of a minor, incompetent, incapacitated, or deceased person.  

The court agrees with Mr. Christensen.  The court points out that while a "guardian" of an incompetent person could seek restitution, a "conservator" could not because conservators are not listed:

While it may be that conservators should be added to the list of victims entitled to restitution, it is up to the legislature and not this court to make that change.

Minn.Stat. 624.7142 Prohibits Only Carrying a Pistol On Or About The Person's Clothes Or Person

State v. Prigge, Minn.Ct.App., 7/31/2017.  It is unlawful to carry a pistol while under the influence of alcohol "on or about the person's clothes or person."  Minn.Stat. 624.7142, Subd. 1(4).  An officer stopped and then arrested Mr. Prigge for driving under the influence of alcohol.  The officer then impounded Mr. Prigge's car, which led to an inventory search. That search turned up a loaded handgun in the bottom of the car's center console compartment.  

The trial court granted Mr. Prigge's pretrial motion to dismiss, concluding that Mr. Prigge was not carrying the pistol "on or about his clothes or person.  The state brought this pretrial appeal.

Now, not three months ago the court looked at this same statute and concluded that it covered one who is walking down a public street "carrying" an unloaded pistol in a case.  State v. Larson.   Different facts, however, gets a different result:  The court of appeals affirms the trial court.  The statute, the court says, is not ambiguous, so it's time to haul out the dictionaries. "Carry" means "to hold or support while moving; bear," or "to hold or be capable of holding."  The American Heritage Dictionary of the English Language 285 (5th ed. 2011).  The court also looked to another statute, 624.714, subdivision 1a, which also prohibits drunks from "carrying" a pistol in public places but provides a more expansive description of "carrying":

A person . . . who carries, holds, or possesses a pistol in a motor vehicle . . . or on or about the person’s clothes or the person, or otherwise in possession or control in a public place . . . without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor. 

It's those missing italicized words that saves the day for Mr. Prigge. Faced with the different language in the statutes the court is unwilling to include "carrying" a pistol in the center console:

The plain statutory language of section 624.714 prohibits a much broader range of conduct than section 624.7124. If the legislature intended the prohibition under section 624.7124 to extend to carrying, holding, or possessing a pistol in a motor vehicle or otherwise possessing or controlling the pistol, it could have done so by using the language it selected for section 624.714. It did not. 

Presumed Error In Instructions - Omitting an Element of the Offense - Is Deemed Harmless

This is the one thousandth post that I have made to this blog.  I don't believe that all of them have been substantive discourses, but most of them have been.  For the ten or so of you who apparently read this please accept my appreciation.  And now, on with the show.

State v. Schoenrock, Minn.S.Ct., 7/26/2017.  This is another opinion in a series of periodic opinions that assumes that there was an error in the trial court but ignores it.  The presumed error in this installment is an instruction error whereby the trial court omitted an element of the charged offense.  Justice Hudson says it was close enough for government work.

Ms. Schoenrock was a personal care attendant (PCA).  She billed the state for hours that she did not work.  When the state caught up with her they charged her with theft by false representation under Minn.Stat. 609.52, subd. 2(a)(3)(iiii).  This statute defines theft by false representation as a crime committed when a person:

obtains for the actor or another the possession, custody, or title to property of or performance of services by a third person by intentionally deceiving the third person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. 

Emphasis added.  The trial court gave the "definition" instruction for this offense, CRIMJIG 16.05, which says:

Under Minnesota law, whoever obtains for [herself] the possession, custody, or title to property of another person by intentionally deceiving the other with a false representation that is known to [her] to be false, is made with intent to defraud, and does defraud the person to whom it is made, is guilty of a crime. 

But, when the trial court got to the "elements" instruction, CRIMJIG 16.06, it did not say anything about "intent to defraud," apparently because the CRIMJIG doesn't have those words.  Ms. Schoenrock asked the trial judge to correct this oversight but the judge declined to do so.

Justice Hudson says, somewhat plaintively, that "intent to defraud" is an element of the offense, but there's no teeth in it.  Instead, there's an audible sigh and then she says, if this is an error it is a harmless one.

DSRA Increased Weight Threshold Does Not Entitle Defendant To Dismissal of Charges

State v. Otto, Minn.S.Ct., 7/26/2017.  This is a companion case to State v. Kirby, decided the same day with basically the same alignment of justices.  Just as Mr. Kirby got the benefit of the reduced Guidelines sentencing range, so, too, does Mr. Otto.

The added wrinkle for Mr. Otto is that the DSRA increased the weight threshold for his crime of conviction.  Mr. Otto possessed 29 grams of methamphetamine, which at the time of his trial satisfied the weight threshold of 25 grams.  After enactment of the DSRA, however, those 29 grams no longer satisfied the weight threshold.  Mr. Otto said that his conviction should be vacated and the charges dismissed.  Justice Lillehaug, for all seven members of the court, reject this assertion, pointing to the DSRA language that says that the new legislation did not apply to crimes committed prior to its effective date.

Offenders Whose Convictions Were Not Final on Effective Date of Drug Sentencing Reform Act Get Benefit of Reduced Guidelines Sentencing Ranges

State v. Kirby, Minn.S.Ct., 7/26/2017.  The trial court imposed a presumptive Guidelines sentence of 161 months for Mr. Kirby's conviction of first degree possession of methamphetamine.  The legislature then enacted, and the governor signed, the Drug Sentencing Reform Act (DSRA).  The pertinent part of that Act for Mr. Kirby is that it reduced the presumptive Guidelines sentencing range for his offense.  Mr. Kirby said that he should be re-sentenced under this reduced Guidelines range. In a 4-3 Opinion, Justice Lillehaug agreed.  Justice G. Barry Anderson dissented, joined by Chief Justice Gildea and Justice Stras.

The DSRA said that it applied "to crimes committed on or after [it's effective date]."  Significantly, it did not say something like, "Crimes committed prior to the effective date of this act are not affected by its provisions."  Justice Lillehaug said that a statement to that effect would abrogate what's called "the amelioration doctrine," which says that an offender whose conviction is not yet final gets the benefit of a statute that reduces punishment for the offender's crime.  

Prior cases establish that the amelioration doctrine applies when:

(1) there is no statement by the Legislature that clearly establishes the Legislature’s intent to abrogate the amelioration doctrine; (2) the amendment mitigates punishment; and (3) final judgment has not been entered as of the date the amendment takes effect. 

The state took aim at the first requirement; it threw up a multitude of reasons to support its assertion that the DSRA had abrogated the doctrine.  Justice Lillehaug rejects them all.  The most cogent reason, which is what the dissenters latched onto, are two provisions in the Sentencing Guidelines.  Both of them have been there forever.  The first one says that "The presumptive sentence . . . is determined by the Sentencing Guidelines in effect on the date of the conviction offense . . . . Minn. Sent. Guidelines 2."  Justice Lillehaug concludes, seemingly out of thin air, that this is only a reference to ex post facto, which prohibits a judge from sentencing a defendant under a law that increased punishment from what the punishment was at the time of the offense.  The other Guidelines provision that the state and dissenters pointed to says that policy modifications to the Guidelines apply to offenders whose date of offense is on or after the specified modification date.  Justice Lillehaug decides that policy changes don't include the sentencing Grid.

Evidence Insufficient Because of Failure to Include One of Three Predicate Prior Convictions In List of Qualifying DWI Enhancement Offenses

State v. Smith, Minn.S.Ct., 7/19/2017.  Here's how this rare plurality opinion begins:

The legal question presented in this case is whether appellant Ryan Leroy Smith’s 2005 gross-misdemeanor conviction of criminal vehicular operation is a “prior impaired driving conviction” under Minn. Stat. § 169A.03, subd. 20 (2008). The question is relevant here because Smith’s current offense, driving while impaired, was enhanced to a first degree crime based on the existence of three prior impaired-driving convictions, including Smith’s 2005 criminal-vehicular-operation conviction. The court of appeals held that Smith’s current offense was properly charged and adjudicated as a first-degree crime because his 2005 conviction was a qualifying offense. State v. Smith, No. A15-0570, 2016 WL 1081154, at *1-2 (Minn. App. Mar. 21, 2016) (analyzing Minn. Stat. § 169A.03, subd. 20). We conclude that, because Smith’s 2005 conviction is not included in the list of qualifying offenses in Minn. Stat. § 169A.03, subd. 20, there was insufficient evidence to convict Smith of first-degree driving while impaired. Accordingly, we reverse.

The result is that the Court throws out on insufficiency grounds Mr. Smith's first degree DWI conviction.  One of Mr. Smith's prior convictions used for enhancement was a 2005 criminal vehicular operation offense. When the legislature subsequently reorganized the CVO statutes it moved the language under which Mr. Smith had been convictetd to a different subsection of the statute; it then stirred the pot even more when it amended the DWI enhancement statute.  That amendment listed each offense that could be used for enhancement by statutory citation, including year of enactment.  Conspicuously absent from that list was the 2005 citation (and year of enactment) of Mr. Smith's CVO offense.

Justice Stras, with Justices G. Barry Anderson and Hudson joining this plurality opinion says, "Show me the statute!"  It's not there and we don't write statutes.  Chief Justice Gildea, not signing on to Justice Stras's literalist interpretation of all things statutory, concurs only in the judgment; she finds the statutes ambiguous and she engages in legislative intent analysis.  She thought that both Mr. Smith and the State had equally compelling arguments.  That left her with "rule of lenity" under which the victory goes to Mr. Smith.

The other three justices dissent, basically concluding that what the legislature did was close enough for government work.  They thought that because the legislature had kept the very same statutory language under which Mr. Smith had been convicted back in 2005 but just in a different subsection, the legislature clearly intended to include it an a qualifying prior conviction.  

Landlord/Tenant Lease Did Not Authorize Landlord to Consent to Police Entry Into A Rented But Unoccupied Apartment

State v. Dotson, Minn.Ct.App., 7/17/2017.  Mr. Dotson stumbled into a police drug investigation.  He'd come over to this apartment most likely expecting either to score or use some drugs only to find the cops all over the place.  When another one of his buddies showed up, Mr. Dotson tried to warn him off, shouting, "They're doing a search warrant in here."  The officers then arrested Mr. Dotson for obstructing legal process; in the search incident to that arrest they found drugs.

Mr. Dotson moved to suppress the drugs; he said that the officers' entry into the apartment had been unlawful.  The way that went down is that the landlord was investigating a water leak thought to be emanating from the very same apartment where later the police arrested Mr. Lawson.  The landlord knocked on the apartment door; for some reason the occupants allowed him to enter even though there was a full blown drug party going on.  The landlord politely inquired about the water leak, found it, and then said he'd be back later to fix it.  The landlord left and immediately called the police. When the police arrived, the drug party had moved on; the landlord told the cops that they could come inside the apartment.  The landlord said that he could give the cops permission under a provision of the lease that allowed him to enter the premises "for purposes of maintenance."  The trial judge denied the motion, relying on this lease provision as well as a statute that gives landlords the authority to enter the apartment under certain specified circumstances.  Here's what the lease provision says:

Management or its authorized agents may enter the Apartment at any reasonable time to inspect, improve, maintain or repair the Apartment, or do other necessary work, or to show the Apartment to potential new residents or buyers.

The court of appeals concludes that this lease provision does not give the landlord either actual or apparent authority to consent to a search of the premises, relying upon State v. Licari, 659 N.W.2d 243 (Minn. 2003).  This is because landlords have rights of access and not rights of use.  As to the statute, that's of no use either:

Generally, a landlord may enter a rented unit for “a reasonable business purpose” after making “a good faith effort to give the residential tenant reasonable notice.” Minn. Stat. § 504B.211, subd. 2 (2016).5 “A residential tenant may not waive and the landlord may not require the residential tenant to waive the residential tenant’s right to prior notice of entry . . . as a condition of entering into or maintaining the lease.” Id. (emphasis added). A landlord may dispose of the notice requirement only if immediate entry is necessary to: (1) “prevent injury to persons or property because of” maintenance, security, or police issues; (2) “determine a residential tenant’s safety”; or (3) “comply with local ordinances regarding unlawful activity” within the premises.

The court of appeals also rejects authority for the warrantless entry on both exigent circumstances and inevitable discovery theories.  

Rules of Evidence Apply to Restitution Hearing

State v. Willis, Minn.S.Ct., 7/12/2017.  This is a restitution case, which asks the question, "Do the rules of evidence apply to restitution hearings."  Both the trial court and the court of appeals said, "No, they don't."  Chief Justice Gildea, Justice McKeig dissenting, said, "Yes, they do."

The answer turns on the interpretation of Rule 1101(b)(3), which excludes the rules of evidence from these hearings:

Proceedings for extradition or rendition; probable cause hearings; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.

Now, not that long ago the supreme court said that the rules of evidence apply to Blakely bench trials.  State v. Sanchez-Sanchez.  Although restitution is part of a "sentencing", State v. Borg, 834 N.W.2d 194 (Minn. 2013), the hearing to which a defendant is entitled when she challenges the amount of restitution is not.   

Giving Wrong Self Defense Instruction Requires a New Trial

State v. Pollard, Minn.Ct.App., 7/10/2017.  A jury convicted Ms. Pollard of second degree felony murder for the stabbing death of her boyfriend. Ms. Pollard did not admit to killing her boyfriend intentionally; rather, she said that she swung the knife at her boyfriend as the two of them were fighting.  She claimed self defense, and  defense of dwelling.  On appeal she said that because the trial judge gave the wrong self defense instruction she is entitled to a new trial.  She had requested the general self defense instruction from CRIMJIG 7.05; the state wanted the justifiable taking of life instruction from CRIMJIG 7.06.  The court of appeals agrees with Ms. Pollard and sends the case back for a new trial.

There are two self defense statutes in Minnesota (and two corresponding JIGS).  Minn.Stat. 609.06, subd. 1 - general self defense - permits the use of reasonable force against another in certain circumstances. Intentionally taking the life of another person - justifiable taking of life - however, is covered under Minn.Stat. 609.065.  Each of these statutes has different requirements:

The elements of self-defense under section 609.06, subdivision 1(3), are

(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of . . . bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.

A person may intentionally take the life of another " when it is “necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.” Minn.Stat. 609.065.  The requirements are:

(1) The killing must have been done in the belief that it was necessary to avert death or grievous bodily harm. (2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances. (3) The defendant’s election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended.

There's a whole slew of cases in which the Minnesota Supreme Court has said that it's error to give the justifiable taking of life instruction when the defendant asserts self defense but claims that the death was not the intended result:

See State v. Carridine, 812 N.W.2d 130, 143-44 (Minn. 2012) (concluding that the justifiable taking-of-life instruction was given in error where the defendant’s defense was that the death was unintended); Hare, 575 N.W.2d at 832-33 (concluding that the “self-defense— causing death” instruction was given in error where the defendant claimed the death was accidental); State v. Robinson, 536 N.W.2d 1, 2-3 (Minn. 1995) (concluding that the instruction was given in error where the defendant claimed the death was accidental); State v. Marquardt, 496 N.W.2d 806, 806 (Minn. 1993) (noting that the general self-defense instruction should be given, or the justifiable-taking-of-life instruction modified, if the defendant claims that he did not intend to kill the victim); see also State v. Dolbeare, 511 N.W.2d 443, 446 (Minn. 1994) (“[E]ven where death has resulted from a defendant’s  action, the judge should use [the general instruction] if the defendant’s theory does not include a concession that there was an intent to kill.”); State v. Sanders, 376 N.W.2d 196, 201 (Minn. 1985) (noting that an instruction that “‘the killing must have been done in the belief that it was necessary to avert death or great bodily harm’ is language that would better fit a case in which the defendant claimed he intentionally killed in self-defense”); State v. Edwards, 343 N.W.2d 269, 277 (Minn. 1984) (providing that the general self defense instruction was properly provided to the jury, rather than the justifiable-taking-of life instruction, as “[t]he latter is useful only when the death was intended”); State v. Fidel, 451 N.W.2d 350, 355 (Minn. App. 1990) (noting that the general self-defense instruction “is the appropriate self-defense standard for second-degree felony murder”), review denied (Minn. Apr. 13, 1990).

The state said that giving the justifiable taking of life instruction, now CRIMJIG 7.06, was just all a clerical error.  Here's why:  A few years back the JIGS Committee switched the numbers on the self defense and justifiable taking of life instructions.  Justifiable taking of life used to be CRIMJIG 7.05; and the general self defense instruction was CRIMJIG 7.06. Now, it's the reverse of that: CRIMJIG 7.05 is now the general self defense instruction, and CRIMJIG 7.06 is now the justifiable taking of life instruction.  

The state went on to point out that there's this case, issued before the numbering switch, that said that the court should give CRIMJIG 7.06 where the defendant claimed that the resulting death was unintentional. State v. Hare, 575 N.W.2d 828 (Minn. 1998). The state said never mind that the CRIMJIG 7.06 from Hare was then the general self defense instruction and is now the justifiable taking of life instruction.  The court's response to this argument is to say that the trial court had to do more than rotely read the cases; rather, it had to use "analytic precision" in drafting jury instructions.

Besides, having gone to the trouble of looking up all these cases and then reciting them, the court of appeals was hardly going to give the trial court and state a pass.  The court concludes that the trial court committed error in giving the justifiable taking of life instruction. The court also said that this error was not harmless:

We cannot say whether the jury would or would not have believed that appellant’s acts were justified if they were properly instructed under Minn. Stat. § 609.06, subd. 1(3), that appellant only had to have an actual and honest belief that she was in imminent danger of bodily harm, rather than death or great bodily harm.

Ms. Pollard gets a new trial.

Admission Into Evidence of Report of Non-Testifying Radiologist Does Not Violate Confrontation Rights

State v. Andersen, Minn.Ct.App., 7/3/2017.  A jury convicted Mr. Andersen of assaulting his girlfriend, A.A.  He complained on appeal that the trial court had improperly admitted prior abuse testimony, and had improperly admitted the report of the radiologist, who did not testify, that confirmed the testimony of a physician's assistant that A.A. had a broken nose.  Here's how the court of appeals summed all this up:

A jury in an assault trial heard testimony that appellant Travis Andersen punched his girlfriend A.A. in the face and that he had previously assaulted her. A.A.’s treating physician’s assistant testified that she examined A.A.’s x-rays and concluded that A.A. suffered a broken nose, and the prosecutor introduced a radiologist’s report confirming that A.A.’s nose was broken. The jury found Andersen guilty. Andersen argues that the district court abused its discretion by allowing A.A. to testify about Andersen’s prior abuse and violated his constitutional right to confront witnesses by admitting the radiologist’s report. We affirm because the prior-abuse testimony was admissible relationship evidence and because the radiologist’s report was not testimonial in nature. 

A.A. testified that Mr. Andersen had once hit her in the face during an argument.  Mr. Andersen said that the trial court improperly admitted this prior abuse evidence because it was only relevant to establish whether A.A. alleges assaultive behavior and not that her allegations in this case were true.  This argument is a bit too nuanced for the court of appeals:

The testimony was not chiefly that A.A. alleged prior abusive behavior, but that Andersen had actually engaged in prior abusive behavior. Her testimony informed the jury of the nature of their relationship, the times that she felt afraid of Andersen, and the times that Andersen attempted to manipulate, control, and restrain her. This testimony has obvious probative value. 

Turning to the report of the non-testifying radiologist, Mr. Andersen relied on a slew of cases where scientific reports made during the course of a criminal investigation were held to be inadmissible under the Confrontation clause.  It's worth a lengthy extract to summarize these cases:

In Caulfield, the Minnesota Supreme Court determined that a Bureau of Criminal Apprehension laboratory report identifying cocaine was testimonial evidence that was admitted in violation of the appellant’s confrontation right. 722 N.W.2d at 306–07, 310. The court recognized that the “critical determinative factor” in determining testimonial nature is whether a statement was prepared for litigation. Id. at 309. It concluded that the report was prepared for litigation, bearing “characteristics of each of the three generic [Crawford] descriptions” because the report was akin to testimony, prepared at police request to aid in a prosecution, and offered into evidence to prove an element of the charged crime. Id

 In State v. Weaver, we held that laboratory results obtained during the course of an autopsy were testimonial. 733 N.W.2d 793, 799–800 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007). The following facts were determinative: the test results were obtained at the medical examiner’s request during an autopsy that occurred during a homicide investigation; the doctor relied on the results in reaching a conclusion on the cause of death; the underlying information was relayed to the jury “in lieu of testimony” at the trial; blood samples were sent to the laboratory after the medical examiner “preliminarily determined that arson had occurred and after appellant had been arrested;” and the technician performing the tests “would have known that the medical examiner’s office was a medical-legal operation.” Id.

And in State v. Johnson, we determined that the district court plainly erred by allowing the state to present an autopsy report through a doctor who was not one of the medical examiners who performed the autopsy. 756 N.W.2d 883, 892 (Minn. App. 2008), review denied (Minn. Dec. 23, 2008). We rejected the idea that the medical examiner’s statutory autopsy duties were “sufficiently independent” of a criminal investigation to render the autopsy report nontestimonial. Id. at 889–90. We pointed out that “Johnson was arrested at the scene. And the autopsy was not performed until approximately 33 hours after death, by which time a homicide investigation presumably had begun.” Id. at 890.

The court declines to find a confrontation violation by doubling down on a confusing record about the time when the radiologist made his report. The defense said that the report of the radiologist came after the police began its investigation and so it was made "in anticipation of litigation." The rub, however, is some sloppy paperwork at the radiologist's office. The time on the report, itself, is "10:34", without a succeeding "a.m. or p.m." This omission allows the court to pronounce that the time notation is "military" time.  No one claimed that the police investigation had begun before 10:34 a.m.; indeed, it's the conclusion of the court that these two events occurred independently of each other more or less at the same time. Consequently, the report wasn't prepared "in anticipation of litigation."