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 "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.  

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.

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

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.

Any Criminal Vehicular Operation Conviction Can Be Used to Enhance a DWI to a Felony Regardless of Statutory Language

State v. Boecker, Minn.S.Ct., 4/26/2017.  Sometimes the "plain language" of a statute just doesn't get you where you want to go:

Worn out phrases and longing gazes

Won't get you where you want to go, no.

Here's how Justice Chutich describes what's before them in this appeal from the court of appeals:

Appellant Ralph Joseph Boecker pleaded guilty to one count of first-degree driving while impaired (DWI) after the district court found that his 1998 conviction for criminal vehicular operation enhanced his 2015 DWI charge. See Minn. Stat. § 169A.24, subd. 1(3) (2016); Minn. Stat. § 609.21, subd. 2a (1996). Boecker argues that he is entitled to withdraw this plea because his 1998 conviction is not included in the list of predicate felonies in section 169A.24, which enhance a DWI charge to first-degree DWI. The sole issue here is whether a criminal vehicular operation conviction from 1998, a year not specifically listed in the current version of the first-degree DWI statute, can be used to enhance a DWI charge to a first-degree offense. We hold that it can, and we affirm the decision of the court of appeals. 

This is just too, too much for the originalist/literalist on the court, Justice Stras to bear:

The question in this case is whether a 1998 criminal-vehicular-operation conviction is a predicate offense that can transform appellant Ralph Boecker’s driving-while-impaired (“DWI”) charge into a first-degree offense. Resolving this question, like the one presented in Mims, turns on the plain and unambiguous language of a criminal statute—here, Minn. Stat. § 169A.24, subd. 1(3) (2016)—not on what behavior we think the Legislature may have believed it was criminalizing. See Mims, 2 N.W. at 492-93. The court’s answer to the question would allow an unlisted offense to enhance Boecker’s current crime, converting it from fourth-degree DWI, a misdemeanor with a maximum sentence of 90 days in jail, into first-degree DWI, a felony offense carrying a minimum sentence of 3 years in prison. Compare Minn. Stat. § 169A.276, subd. 1(a) (2016), with Minn. Stat. § 169A.27, subd. 2 (2016); Minn. Stat. § 609.03 (2016). My answer is different. I would conclude that the plain and unambiguous language of section 169A.24, subdivision 1(3), establishes that Boecker’s 1998 criminal-vehicular-operation conviction, which is nowhere to be found in the first-degree DWI statute, does not enhance Boecker’s current DWI offense.

Justice Hudson joined Justice Stras's dissent.

Despite Statutory Language To The Contrary a Motel Room is a "Building" Unto Itself Under the Burglary Statute

State v. Lopez, Minn.Ct.App., 4/24/2017.  Mr. Lopez was staying in a motel out in Wilmar.  He entered Z.D.'s motel room, which was unlocked, and stole Z.D.'s cell phone and wallet while Z.D. was in the shower.  The state charged Mr. Lopez with theft and with first degree burglary.  The trial court convicted Mr. Lopez of both counts.

On appeal Mr. Lopez said, as he had during trial, that he had not entered a "building" without consent because he was staying at the motel - a "building", surely -, and that Z.D.'s separate motel room was not a "building. The court of appeals said no to both of these claims.

Everyone agreed that Mr. Lopez had consent to enter the motel, itself; after all, he'd rented a room (different from Z.D.'s room).  So, the conviction for the burglary turns on whether Z.D.'s room is a "building," or more accurately, a "sub-building". Mr. Lopez said that it was not, pointing in particular to the arson statute that says that “If a building consists of two or more units separately secured or occupied, each unit shall be deemed a separate building.”  Minn. Stat. § 609.556, subds. 1, 3 (2014). 

Looking directly at the burglary statute - or to what's not in the burglary statute - he also pointed out that until 1983 the definition of "building" in the burglary statute expressly included "portions of such structure as are separately occupied." Like a motel room. Removing that language, he argued, indicated the legislature's desire not to treat individual, enclosed spaces within a larger building - alas, a motel room - as separate "buildings."  Rather than simply pointing to what's not in the burglary statute the court of appeals says that the post 1983 language is ambiguous.  Further, although it has skirted around the question of whether under the post 1983 burglary statute a "building" encompasses sub-units like Z.D.'s motel room it has not answered the question.  Time to haul out the dictionaries and Phoenix-like raise up the old statute.

Where the court finds that a "structure" includes anything intentionally constructed from component parts.  A motel room fits that definition so the court is half way home.  To complete the journey the court looks to the statutory definition of a "building." The statute says that a "building" is a  "structure" that is "suitable for affording shelter for human beings."  Well, a motel room is by its very existence "suitable for affording shelter for human beings." That's the whole point:

We are mindful of the fact that the legislature modified the definition of “building” for the crime of burglary in 1983 and, in doing so, did not expressly provide that a separate unit “shall be deemed a separate building,” as it did for arson. Minn. Stat. § 609.556, subd. 3. We are also mindful that our holding means that both a motel and a rented room within the motel qualify as a “building” for the purposes of the burglary statute. But inartful language is not necessarily ambiguous language. And we conclude that the statute as written unambiguously defines a motel room as a “building.” 

The court thus reinserts the very language that the legislature struck out thirty-four years ago.  Sigh.

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).

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. 

Supreme Court Overturns Court of Appeals Decision That "Grooming" Statute is Facially Unconstitutional

State v. Muccio, Minn.S.Ct., 3/8/2017.  Just a couple of weeks ago the court was unable to say whether an adult who has sex with a child has engaged in the “sexual abuse of a minor” under the immigration statutes.  This reluctance seemed to be both to protect defense attorneys from malpractice claims, and to prevent the defendant, who is not a citizen, from being able to take back his guilty plea and perhaps avoid deportation.

This week, the court has no difficulty whatsoever in determining that a much more opaque and complex statute did not violate free speech protections of the First Amendment. In doing so, Chief Justice Gildea reverses the court of appeals which had said that the "grooming" statute was facially unconstitutional.

Ms. Muccio sent a close-up of a female's genitals, a close-up of a female's buttocks covered by a thong, and a female naked from the waist to the neck to a fifteen year old.  Ms. Muccio and the fifteen year old also had sexually explicit conversations and exchanged sexually explicit photographs.  The state charged Ms. Muccio with communication with a minor describing sexual conduct in violation of Minn.Stat. 609.352, subd. 2a(2).  She moved to declare this statute unconstitutional and the trial court granted that motion.  The state brought this appeal.

Here's what the statute says:

A person 18 years of age or older who uses the Internet, a computer, computer program, computer network, computer system, an electronic communications system, or a telecommunications, wire, or radio communications system, or other electronic device capable of electronic data storage or transmission to commit any of the following acts, with the intent to arouse the sexual desire of any person, is guilty of a felony . . . : engaging in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct. 

The court does conclude that this statute is overbroad because it does regulate some protected speech.  So, the justices reign in just who and what the statute covers.  First, the adult's "engaging" behavior must be directed at a child:

we conclude that the statute prohibits an adult from participating in the electronic transmission of information relating to or describing sexual conduct if the intended target or object of the transmission is a child.

Non-targeted mass internet communications do not come within the ambit of the statute.  The statute's intent requirement, "with intent to arouse the sexual desire of any person," means just that:  any person and not just the adult or child who are engaging in the communication.  The court more or less just jumps to the conclusion that mass internet communications won't meet that intent requirement.  Whatever protected speech gets swept up in the statute is not substantial enough to invalidate the statue.

Driving in Light Rain Provided Lawful Basis To Stop Vehicle

State v. McCabe, Minn.Ct.App., 2/6/2017.  There's a statute that says that drivers must display lighted headlamps and lighted tail lamps in three circumstances:

(1) at any time from sunset to sunrise; (2) at any time when it is raining, snowing, sleeting, or hailing; and (3) at any other time when visibility is impaired by weather, smoke, fog or other conditions or there is not sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 500 feet ahead.

Minn.Stat. 169.48, subd. 1(a).  Well, when the cops stopped the vehicle in which Mr. McCabe was a passenger it was "raining lightly."  There were no lights.  Mr. McCabe had a handgun that he wasn't supposed to have so the state charged him with that.  He said, and the trial court agreed, that despite this "light rain" the visibility was not impaired and so the cops had no business stopping the vehicle.

The court of appeals said, no, the statute creates three distinct conditions under which lights must be displayed.  In this case, the "light rain" was enough.  That gave the cops a lawful basis to have stopped the vehicle and that was that.

Manipulation of Steering Wheel of a Moving Vehicle By a Passenger Is Operation" of a Motor Vehicle

State v. Henderson, Minn.Ct.App., 1/30/2017.  Backseat driving, actually passenger seat driving, is still, well, driving, or in the parlance of the criminal vehicular operation laws "operating a motor vehicle."  Mr. Henderson got annoyed with the driving of the "driver" - the person sitting behind the steering wheel - and grabbed the wheel. The laws of motion and gravity being what they are, the car turned in the direction that Mr. Henderson charted. Unfortunately, Mr. Henderson had no access to the brake pedal from the passenger seat and so his wheel maneuver caused the driver to lose control of the car, which crashed upside down.  This got the attention of the cops, which got their attention on Mr. Henderson, which lead them to charge him with criminal vehicular operation.

Mr. Henderson said that to "operate" a motor vehicle required that he activate or manipulate any of the controls of a motor vehicle necessary to put the vehicle in motion.  He borrowed this definition from the jury instructions for driving under the influence of alcohol.  He said that grabbing the wheel kept the car in motion but did not put the car in motion; for that you needed access to the gas pedal.  Neither the trial court nor the court of appeals was persuaded:

We agree that the manipulation of the steering wheel of a moving motor vehicle by a passenger constitutes “operation” of a motor vehicle under Minn. Stat. § 609.21. This conclusion is supported by the policy of giving impaired driving laws the broadest possible effect in favor of public safety, the plain meaning of the word “operate,” and the fact that the vehicle was not stationary when appellant manipulated the steering wheel. 

In the Absence of Ambiguity The "Plain Meaning" of an Ordinance Controls

State v. Vasko, Minn.S.Ct., 1/18/2017. What better way is there to drive home the company line on the proper way to construe a statute than the Lester Prairie City "blight" ordinance?  Ms. Vasko was keeping a maroon Oldsmobile in her front yard; the tabs had been expired for years.  It being a quiet day in Lester Prairie the police chief took an interest in Ms. Vasko's front yard.  Eventually, the chief cited Ms. Vasko for violating the city's ordinance - did I mention that the city code is a whopping three hundred sixty-three pages, not bad for a city of 1,690 - against keeping junked cars in one's front yard. Here's what it says:

It shall be unlawful for any person . . . occupying or owning private property within the City of Lester Prairie to keep or permit to be kept any junked or abandoned vehicles or other scrap metal on such private property . . . for a period in excess of thirty (30) days without a special use permit granted by the City Council. 

Let's call this first section of the ordinance the "special use permit" section.  That's because there's another section - let's call it the "general blight" section - that identifies all manner of conditions that in the city's considered opinion constitute "blight or blighting factors," including junk vehicles and poisonous plants. This "general blight" section requires the city to give written notice to the property owner to remove the blight condition within ten days. Both sections have a penalty provision, which pronounces that it is a misdemeanor to violate "this ordinance."

The city cited only the "special use permit" language in the citation that it issued to Ms. Vasko.  Ms. Vasko took the city to trial; she said that because she had been moving the Oldsmobile in and out of her garage there was no continuous thirty days during which the car affronted the city sensibilities; and, she didn't get her ten day notice.  (She apparently fabricated a letter from the city clerk that appeared to be a "special use permit, but we don't need to go there.) She lost but the trial court imposed a petty misdemeanor sentence. Undaunted, she appealed to the court of appeals, which reversed the conviction; that court read the ordinance to create a single crime which in its view the state hadn't proved.  Justice Chutich reinstates the conviction.

The Justice said that the ordinance creates two separate crimes:  the "special use permit" crime and the "general blight" crime.  Each has its own penalty section and thus each stands separate from the other.  The court of appeals was wrong to determine that the ordinance was ambiguous and thus had no business construing it the way it did.

And the company line:

We review issues of statutory interpretation de novo. Nelson, 842 N.W.2d at 436. The purpose of statutory interpretation is to ascertain the intent of the Legislature. Christianson v. Henke, 831 N.W.2d 532, 536 (Minn. 2013). When interpreting a statute, “we give words and phrases their plain and ordinary meaning.” Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 759 (Minn. 2010) (citing Minn. Stat. § 645.08 (2016)). “If a statute is unambiguous, then we must apply the statute’s plain meaning.” Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010). If, however, a statute has more than one reasonable interpretation, then it is ambiguous, and we may apply the canons of statutory construction to determine its meaning. State v. Hayes, 826 N.W.2d 799, 804 (Minn. 2013).

Trespass "Leave and Don't Return" Subsection Requires Proof of Both

State v. Kremmin, Minn.Ct.App., 1/3/2017.  One of the ten ways to commit trespass is to return "to the property of another within one year after being told to leave the property and not to return, if the actor is without claim of right to the property or consent of one with authority to consent."  Minn.Stat. 609. 605, subd. 2(8).  Mr. Kremmin and his estranged spouse co-owned a horse who lived at S.S.'s place.  Mr. Kremmin went over to S.S.'s place and fetched the horse back to his farm.  S.S., upon discovering the missing horse, went to Mr. Kremmin's farm.  S.S. told Mr. Kremmin never to return to her property.  Mr. Kremmin ignored this missive and later went onto S.S.'s property (but apparently did not disturb the horse.)

The state charged Mr. Kremmin with trespass under this leave and never return definition of the crime.  At the end of the state's case Mr. Kremmin said that he was entitled to a judgment of acquittal because the state had failed to prove that S.S. told him both to leave the property and not to return to the property.  The trial court denied this motion for a judgment of acquittal.

The court of appeals reverses.  The state does have to prove under this leave and don't return definition of trespass that while on the property the offender was told to leave and was told not to return. Because no one disputed that Mr. Kremmin was on S.S.'s property when she told him to leave he could not have been told to depart that property as the statute requires.  

Assisted Suicide Statute is Neither Facially Nor As Applied Unconstitutional

State v. Final Exit Network, Inc., Minn.Ct.App., 12/19/2016.  The Minnesota Supreme Court has construed the assisted suicide statute to permit prosecution for assisting suicide, but not for advising and encouraging suicide.  State v. Melchert-Dinkel.  Someone who wishes to partake of the services that Final Exit Network provide must first survive, so to speak, a vetting process in order to become a "member." The guys at Final Exit will then assign a member an "exit guide" to do such things as direct the member where to purchase the gear that will be needed to effectuate the suicide.  The exit guide rehearses the procedure with the member, attends the procedure and then secrets away the gear.  The exit guide never physically assist the member in ending his or her life.

Melchert-Dinkel said that the state can prosecute someone for speech or conduct that provides another person with what is needed for the person to commit suicide.  The trial court instructed the jury that:

To “assist” means that [Defendant] enabled [D.D.] through either physical conduct or words that were specifically directed at [D.D.] and that the conduct or words enabled [D.D.] to take her own life. One has not “assisted” where one has only expressed a moral viewpoint on suicide or provided mere comfort or support. 

Relying upon Melchert-Dinkel the court of appeals upholds Final Exit's conviction, rejecting both facial and as applied First Amendment challenges to the statute.  

Court Expands Sweep of Assault-Harm to Include All Volitional Acts

State v. Dorn, Minn.S.Ct., 12/7/2016.  Ms. Dorn pushed D.E. when he accused her of being a drug dealer.  It wasn't a hard push; he may have just sort of leaned back then returned to the upright position, like those air-inflated Christmas decorations.  Ms. Dorn then pushed * again.  Still not a hard push but this time D.E. lost his balance, may have stumbled and fell into the embers of a nearby bonfire. The state charged Ms. Dorn with assault in the first degree - D.E.'s injuries met the definition of "great bodily harm - and a jury convicted her.  The judge put her on probation forever instead of sending her to prison.  The court of appeals affirmed the conviction.

Ms. Dorn said what she did wasn't an assault because she didn't intentionally harm D.E. and because her actions did not directly cause D.E.'s injuries.  She said that the statute required proof of some intent to harm D.E.  Justice McKeig rejects this assertion. Assault/harm requires that an individual assault another and inflict great bodily harm.  "Assault" in this instance means the intentional infliction of bodily harm upon another. 

Now, Minnesota's assault statute has always been incredibly broad; it is now breath takenly so.  Justice McKeig has replaced the supposed mental state required of criminal assault - intentional infliction of bodily harm - with any volitional act upon another person.  If that volitional act results in a common law "battery" - the intentional application of unlawful force against the person of another - then the assault statute's requirements are met.  The extent of injury then determines the degree of assault that has been committed.  This is so even when, apparently, the resulting harm from the battery is totally unwitting.  Mischiefly the Justice offers absolutely no guidance on what the outer limits - if, indeed, there are any - of this sweeping expansion of the assault statutes may be. So the next time you think about giving a colleague a congratulatory slap on the back for a job well done, reconsider, because you've just committed a criminal assault. If your colleague isn't paying enough attention, stumbles back and hits her head on, say, a concrete wall, you're off to prison for a felony assault.

Stalking Statute Prohibiting Repeated Telephone Calls Not Unconstitutional

State v. Hall, Minn.Ct.App., 12/5/2016.  Upset over his water bill, Mr. Hall placed five calls to a town employee in the middle of night.  Upon discovering that the town office wasn't open, and apparently being "old school", Mr. Hall left five voicemail messages, each more vociferous, obscene and hostile.

The state charged Mr. Hall with stalking for "repeatedly making telephone calls, knowing that the conduct would cause the victim to feel frightened, threatened, persecuted, oppressed, or intimidated and, in fact, causes this reaction. See Minn. Stat. § 609.749, subds. 1, 2(4) (2014)."  Mr. Hall said that his voicemails were protected speech under the First Amendment.  Here's how the court described the first call:

Hall’s first voicemail began with complaints about the mistreatment of neighborhood dogs. As the voicemail continues, his tone became increasingly hostile. He says that “this bullsh-t is going to come to an end.” He tells B.R. that she is “done” and that the locals are waiting for someone like him to “step up to the plate and swing the bat.” He adds, “Your bullsh-t is about to end.” He then described rumors about how B.R. was kicked out of her house for being immoral and how her family had killed a man. He says that “things are going to happen around here real quick, real quick, all done.” He ends the voicemail by insulting B.R.’s husband as a “fat mother f-cker.” The first voicemail is 3 minutes and 25 seconds long and includes more than 20 expletives. 

You get the picture.

The court concludes that the stalking statute includes not just making repeated calls but also the content of those calls.  The court then concludes that the statute is neither overbroad on its face nor as applied.  Because the statute includes a knowledge requirement by the actor, and a harm requirement to the victim, "it is highly unlikely that the statute would sweep a substantial number of constitutionally protected communications within its purview."   And, because Mr. Hall's rant included threats his voicemails were not protected speech, but, rather, were "fighting words."

Issuing a Worthless Check For A Service or Good Already Received Exempt From The Issuing Dishonored Check Statute

State v. Schouweiler, Minn.S.Ct., 11/16/2016.  Ms. Schouweiler sent a worthless check to the Wabasha County Treasurer to pay for her past year's property tax obligation.  When the treasurer invited her to make good on the check she ignored the request.  As a result, the state charged her with felony issuance of a dishonored check. Here's what the statute says:

Whoever issues a check which, at the time of issuance, the issuer intends shall not be paid, is guilty of issuing a dishonored check.

Ms. Schouweiler moved to dismiss the Complaint, invoking an exception to this statute that says that it does not apply to either a postdated check or to a check given "for a past consideration."  She said that the bill for her previous year's property taxes was "a past consideration" exempted from the grasp of the statute.

Justice Chutich agrees, with Chief Justice Gildea dissenting. Justice Chutich hauls out multiple dictionaries to define what a "past consideration" is, and reverses Ms. Schouweiler's conviction.  The court says that a "past consideration" includes checks given either for services already performed or for goods already received.  The statute is for the K-Mart crowd passing paper to some teenage cashier to buy some blue light special.  If that same person goes home and writes a bad check to pay for last month's Verizon cell phone calls, well, the money is still owed for that "past consideration," but there's been no crime.  Or, at least not this crime.