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.