Misdemeanor Domestic Assault Is Not Lesser Included Offense of Second Degree Assault

State v. Nyagwoka, Minn.Ct.App., 4/3/2017.  The state charged Mr. Nyagwoka with assault in the second degree.  Mr. Nyagwoka decided to have a bench trial, at the end of which the judge had some doubt whether the state had proven its case.  So, on its own the court found mr. Nyagwoka guilty of misdemeanor domestic assault.  Mr. Nyagwoka argued on appeal that misdemeanor domestic assault was not a lesser included offense of assault in the second degree.

The court of appeals agrees.  The court says that misdemeanor domestic assault is not an included offense of second degree assault:

Misdemeanor domestic assault does not constitute an included offense of second degree assault under any of these statutory definitions. Because misdemeanor domestic assault is neither an attempt offense nor a petty misdemeanor, it is not “[a]n attempt to commit the crime charged,” “[a]n attempt to commit a lesser degree of the same crime,” or “[a] petty misdemeanor necessarily proved if the misdemeanor charge were proved.” Id., subd. 1(2)–(3), (5). 

The court also says that misdemeanor domestic assault is not a lesser degree of second degree assault:

Because misdemeanor domestic assault is not a lesser degree of second-degree assault, it is not an included offense under section 609.04, subdivision 1(1). 

And, finally, it is not an offense necessarily proved by proof of second degree assault:

“An offense is necessarily included in a greater offense if it is impossible to commit the greater offense without committing the lesser offense.” State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006) (quotation omitted). “In determining whether one offense necessarily is proved by the proof of another, the trial court must look at the statutory definitions rather than the  facts in a particular case.” State v. Gisege, 561 N.W.2d 152, 156 (Minn. 1997) (quotation omitted). To prove second-degree assault, the state must show that the defendant “assault[ed] another with a dangerous weapon.” Minn. Stat. § 609.222, subd. 1. Misdemeanor domestic assault requires proof that the defendant “intentionally inflict[ed] or attempt[ed] to inflict bodily harm” “against a family or household member.” Minn. Stat. § 609.2242, subd. 1(2). Because second-degree assault does not require proof that the victim is a family or household member, it is possible to commit second-degree assault without also committing misdemeanor domestic assault. Misdemeanor domestic assault therefore is not an included offense under section 609.04, subdivision 1(4).

Evidence of Premeditation Sufficient

Loving v. State, Minn.S.Ct., 3/22/2017.   A jury convicted Mr. Loving of first degree premeditated murder, and some other crimes not pertinent to this combined direct appeal/post conviction appeal. Apparently over an $80.00 debt, Mr. Loving shot and killed Gilbert Jordon.  Mr. Jordon had nothing do do with the dispute over the debt between Mr. Loving and Mr. Jordon's brother.

On appeal Mr. Loving said that the state had failed to prove premeditation.  Justice Stras went through the facts and applied them to the standard issue law on proof of premeditation and concluded that the state had met its burden.

Several basic principles about premeditation guide our analysis. First, we have explained that, although a defendant does not have to engage in extensive planning or deliberate for a specific amount of time, the formation of intent and premeditation cannot occur simultaneously. State v. Hurd, 819 N.W.2d 591, 599 (Minn. 2012). Instead, the State must prove that, “ ‘after the defendant formed the intent to kill, some appreciable  time passed during which the consideration, planning, preparation or determination . . . prior to the commission of the act took place.’ ” Id. (quoting State v. Moore, 481 N.W.2d 355, 361 (Minn. 1992)). Second, we examine the evidence as a whole, including the actions taken by the defendant before and after the crime, to determine whether premeditation existed. See id. Three categories of evidence are particularly helpful in evaluating whether premeditation existed: planning activity, motive, and the nature of the killing. Id.

Mr. Loving had wanted to introduce evidence of other past violent incidents at the gas station where all this took place.  The difficulty for Mr. Loving, which caused the trial court to deny his request to introduce this evidence, was that he presented no evidence that he had participated in any of these events, that he knew anyone who had done so, or that he was even aware of these incidents.  The upshot was that none of this evidence supported explained what was going through his mind when he fired off the seven rounds.

Finally, Mr. Loving complained that he should have been given the non-testimonial portion of the grand jury transcript.  Mr. Loving had sought the transcript to pursue a prosecutorial misconduct argument.  The trial court reviewed the transcript and pronounced that there was no evidence of such misconduct and so the court denied the request.  It's not clear whether Mr. Loving got the testimony of any witnesses who testified at the grand jury and at trial, which the rules say he is entitled to just by asking:

Once a defendant files a motion, the court must order the disclosure of, among other things, the “defendant’s grand jury testimony”; “the grand jury testimony of witnesses the prosecutor intends to call at the defendant’s trial”; and in limited circumstances, “the grand jury testimony of any witness” the defendant expects will give “relevant and favorable testimony for the defendant.” Minn. R. Crim. P. 18.04, subd. 2. If the requested portions of the transcript fall into one or more of the designated categories, then the court must order the release of those portions of the transcript upon motion by the defendant, subject to a protective order, and no showing of good cause is necessary to obtain them. Id.

Criminal History Score Decay Calculation is From Discharge/Expiration of Sentence to Start Date of a Continuing Offense.

State v. Washington, Minn.Ct.App., 3/27/2017.  The state charged Mr. Washington with violation with the predatory offender registration law. One of Mr. Washington's prior convictions hit the fifteen year decay milestone during the commission of the new offense.  He said that the trial court could not, therefore, count that decayed conviction in computing his criminal history score.

The Guidelines say that the decay is measured as fifteen years since the date of discharge or expiration of sentence to the date of the current offense.  The court says that this calculation is from either discharge or expiration to the state date of a continuing offense.

Extrapolation of Drug Weight Insufficient Proof of That Element

State v. Carpenter, Minn.Ct.App., 3/27/2017.  Fair warning:  this is a case about statistics.  For those of you who've stuck around, it's also about hubris.

The cops seized sixty-four individually wrapped plastic baggies of suspected heroin.  The state charged Mr. Carpenter with first degree sale, which requires ten grams or more of heroin; and with first degree possession, which requires twenty-five grams or more.  Budgets being what they are, the BCA used something called the "hypogeometric sampling plan".  Check it out.  The BCA tester did whatever this sampling plan said to do and it spit out a number:  19. Test nineteen bags, that's all.  So, that's what she did. And came up short of the required ten grams by almost a gram for the sales count. Not to worry, she pronounced some more statistical words and concluded that she was 95% confident that 90% of the total ninety percent of the total sample contains the same substance as the nineteen tested.  Read for yourself what happens next:

Goldstrand testified at Carpenter’s trial that the hypogeometric sampling plan supports a 95% confidence rate that 90% of the total population size contains the same substance as the 19 test samples. Based on Goldstrand’s testimony, the district court concluded that, of the 31.333 grams of the substance seized, at least 28.1997 grams consisted of heroin—28.17 grams is 90% of the total sample. Because 28.1997 grams is above the 25-gram statutory amount required for first-degree aiding and abetting the possession of a controlled substance, and the ten-gram statutory amount required for first degree aiding and abetting the sale of a controlled substance, the district court found Carpenter guilty of both charges

Mr. Carpenter chose to have a bench trial.  Defense counsel moved for a judgment of acquittal based upon the weight of the heroin. The trial court looked at the rule, Rule 26.03, and concluded that it only applied to jury trials.  Motion denied.

The rule does say, "jury" multiple times, so a literal reading of the rule supports the trial court's conclusion.  To avoid this absurd result, the court of appeals has to reach back all the way to the beginning of the criminal rules, to rule 1, which says that the rules - all of the rules - apply without differentiation between jury and bench trials to prosecutions for felonies, gross misdemeanors, misdemeanors and, and, petty misdemeanors.  The judge got this one wrong.

And the Minnesota Supreme Court has already said, no, to this statistical sampling method for proof of weight.  State v. Robinson, 517 N.W.2d 336 (Minn. 1994).  Extrapolation of weight through random testing is inappropriate when the substance being sampled has a high risk of substitutes; drug dealers mix bogus substances with the real stuff all the time.

An Officer Who Makes a Discretionary Warrantless Arrest is Engaged In Performance of Official Duties

State v. Litzau, Minn.Ct.App., 3/27/2017.  The local sheriff's office went out to arrest Mr. Litzau on a parole violation.  In response to the deputy's news that he was under arrest Mr. Litzau took off.  The deputy caught him anyway and the state charged Mr. Litzau with obstruction of legal process and fleeing a peace officer.  Mr. Litzau argued that an officer is "engaged in the performance of official duties" only when performing a mandatory act.  Because the decision whether to make a warrantless arrest of someone is discretionary then the deputy wasn't "engaged" in arresting him.  

The court of appeals pretty much shut the door on that argument in State v. Shimota, 875 N.W.2d 363 (Minn.Ct.App. 2016), review denied (April 27, 2016).  The state does not have to prove that the deputy was required to arrest Mr. Litzau in order to establish that he was "engaged" and so forth.

Mr. Litzau also said that the statute does not prohibit obstructing one's own arrest.  After all, the statute only prohibits obstructing the arrest "of another person charged with or convicted of a crime." The state had two responses to this: first a procedural claim that Mr. Litzau had forfeited it by not raising it in the trial court; and it's nonsense.  On the forfeiture claim, because Mr. Litzau's argument presents a sufficiency of the evidence question he has not forfeited the claim.  The court does reject the merits of the claim:

Creative though it is, we reject appellant’s argument. Minn. Stat. § 609.50, subd. 1(2), plainly applies to a person who obstructs or resists an officer arresting that person as part of that officer’s official duties. 

Granting State's Motion to Reopen Case in Chief in Response to Defense Motion For Judgment of Acquittal Not an Abuse of Discretion

State v. Thomas, Minn.S.Ct., 3/22/2017.  Well, timing is everything. During Mr. Thomas' trial for gross misdemeanor DWI - which requires proof of two or more prior impaired driving incidents -  the state neglected to offer into evidence those prior impaired driving incidents. Defense counsel pounced on that, moving for a judgment of acquittal. This flummoxed the trial judge, who immediately fled to chambers. This let the prosecutor catch her breath.  The minute the trial judge took the bench she shot up to request to reopen her case in chief.  Defense counsel complained that permitting the state to reopen it case in chief would be really unfair because she only knew to make the request after the defense asked for the judgment of acquittal.  The trial judge allowed the state to reopen, she introduced the aforesaid prior convictions and that was that.

Chief Justice Gildea says unfair or not it's okay to permit the state to reopen its case in response to a defense motion for a judgment of acquittal, agreeing with both the trial court and the court of appeals. She points to the language of the pertinent rule, 26.03, subd. 18(2), which says that when the defense moves for a judgment of acquittal at the end of the state's case the trial court "must rule on the motion."  The language, however, does not say that the court must "immediately" rule on the motion.  The chief says that the purpose of the rule requiring the trial court to rule on the motion is to protect the defense from having to come forward with evidence that would fill the gaps in the state's case. Since the defense here had no intention of filling anyone's gaps the purpose of the rule is maintained, ignoring, or course, that this interpretation harms the defense by giving the state a second bite at the apple.

That just leaves the unfairness of the whole thing.  But it's not fairness, it's discretion.  The court has no difficulty deciding that the trial court had not abused its discretion by granting the two motions - the reopening motion and the acquittal motion - in reverse order.