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. 

Air Powered BB Gun Is Still Not a "Firearm"

State v. Yang, Minn.Ct.App., 11/14/2016.  A few weeks back the Minnesota Supreme Court said in State v. Haywood, that the "firearm" family that lived at Minn.Stat. 609.165.1(b) did not include "BB guns".  The court of appeals, for the life of them, can't discern any reason why the "firearm" family next door at Minn.Stat. 624.713.1 could also include "BB guns."

Air-Powered BB Gun Is Not a Firearm

State v. Haywood, Minn.S.Ct., 10/19/2016.  The state charged Mr. Haywood with possession of a "firearm" by one who is prohibited from such possession.  The "firearm" in question was an air-powered BB gun.  Mr. Haywood said, no, an air-powered BB gun is not a "firearm" because every dictionary he consulted for the definition of "firearm" said that in order to pass muster as a "firearm" the object must use gunpowder or some similar chemical explosive force.

Now, the court of appeals had affirmed Mr. Haywood's conviction, relying upon a supreme court opinion, State v. Seifert, 256 N.W.2d 87 (Minn. 1977).  "Law by dictionary" wasn't in vogue back then so the courts were much freer to decide cases with the result in mind, based upon what the particular make of the court perceived the legislative purpose to be. Seifert invoked a game and fish statute, among other authorities, to satisfy itself that the legislature meant "firearm" to be all encompassing:

In our opinion, the fact that the gun defendant used required gas rather than gunpowder to discharge its projectile does not mean, as defendant contends, that the gun could not be a firearm within the meaning of the term “firearm” used in [section] 609.02. Having statutory purpose in mind, we think that term should be defined broadly to include guns using newer types of projectile propellants and should not be restricted in meaning to guns using gunpowder.

Not so now.  Justice Hudson says that the "plain and ordinary" meaning of "firearm" is an object that requires gunpowder or some similar chemical explosive force.  The use of compressed air is nowhere in any of the dictionary definitions of "firearm."  

An Unfriendly Push Which Results in Unintended Harm Is Still An Assault

State v. Dorn, Minn.Ct.App., 2/16/2016, review granted, 4/19/2016. Ms. Dorn attended what the court described as a "large outdoor drinking party."  Ms. Dorn took umbrage at something that a friend of the fellow who is about to fall into the bonfire said and so she pushed this fellow with two hands.  This fellow, whose back was to the bonfire, lost his balance; Ms. Dorn pushed him again, whereupon this fellow fell into the bonfire.  He got third degree burns.

The state charged Ms. Dorn with first degree assault, harm.  She elected for a bench trial.  The trial court found that while Ms. Dorn had not intended to push the fellow into the fire, she did intentionally push him two times, which resulted in him falling into the fire and causing significant burns.  Ms. Dorn argued that the state had to prove that she had intended to push him into the fire because "substantial bodily harm" is an element of the offense.  Ms. Dorn did not argue that there had been an intervening event between the pushing and the landing in the fire that relieved her of criminal responsibility.  

The court relies on State v. Fleck, 810 N.W.2d 303 (Minn. 2012) to conclude that because assault, harm is a general intent crime, all that the state has to prove is an intentional physical act, which resulted in the requisite harm.  The court recognized the harshness of this conclusion for Ms. Dorn:

We agree that this leads to a harsh result where Dorn engaged in rather de minimis behavior when viewed in the context of the spectrum of actions that lead to the infliction of harm. 

The court does temper the global application of its opinion by saying that the physical act must not only be intentional, but done in a "hostile and forceful manner."  

Because pushing is a volitional act and when committed in a hostile and forceful manner, is an assault, regardless of whether harm was intended, and appellant’s pushes were a substantial factor in causing the complainant’s injury, we affirm. 

So, one supposes, had Ms. Dorn tickled the fellow who then laughed so uncontrollably that he fell into the fire - well, that's not an assault.  Or, if the two had exchanged high fives which led the fellow to fall into the fire, well you get the idea, although the supreme court may not

Crime of Clergy Sexual Conduct Does Not Require Proof That Clergy Had Knowledge that Complainant Sought or Received Religious Advice

State v. Wenthe, Minn.S.Ct., 6/24/2015.  A jury convicted Mr. Wenthe of third degree criminal sexual conduct for "sexually penetrating A.F. - a member of the parish where Wenthe served as priest - at a single meeting at which A.F. sought spiritual counsel." Mr. Wenthe has been in and out of the appellate courts several times now, go here, here, and here.  Most recently, the court of appeals had (again) reversed that conviction and the state sought review.  Justice Anderson, for four members of the court - Dietzen and Wright not participating and Page dissenting - now (again) reverses the court of appeals.  Justice Anderson addressed each of the three issues on which the court of appeals had reversed.

At trial the court gave the standard instruction on unanimity.  On appeal Mr. Wenthe argued successfully that it had been plain error for the trial court not to have given an instruction that the jury must unanimously agree on which of several meetings between A.F. and Mr. Wenthe that he violated the statute.  The trial court declined to give that instruction but the court of appeals said that it should have done so, that it was plain error and that it required a new trial. Justice Anderson awards this decision to the trial court without really deciding the question.  Instead, the justice said that if there were error it did not affect Mr. Wenthe's substantial rights.

Second, the defense did ask the trial court to instruct the jury that a clergy member must have subjective knowledge of the purpose of the meeting at which sexual penetration occurs.  The trial court declined the request and gave a knowledge instruction that only went to the element, intent to sexually penetrate.  The court of appeals concluded that this was error because the statute required proof of a "particularized knowledge" that the complainant sought spiritual counsel.

Justice Anderson says, no, that's not what the statute says so that's not what it requires.  Here's the pertinent portion of the statute, Minn.Stat. 609.344, subd. 1(I):

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists: . . . .

(l) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and: 

...

(ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense . . . .

The justices can't find anything about a knowledge requirement here and under its literalist approach to jurisprudence are not about to insert one. That's a legislative function. Also, because previous case law requires that sexual penetration must be intention, then the statute survives the claim that without an additional knowledge requirement its a strict liability offense.

Finally, at trial Mr. Wenthe had sought to introduce evidence of A.F.'s sexual history. The state parried the request by promising only to introduce evidence of A.F.'s sexual abuse as a child. The state broke that promise, however, when it elicited testimony from A.F. that she was sexually inexperienced. Justice Anderson said that the state should have kept its promise and that the trial court made a mistake by permitting the receipt of the "inexperience" evidence. That mistake, however, did not amount to an abuse of discretion, which is the appellate review standard of evidentiary rulings. And, to cover the bases, if the ruling was an abuse of discretion it was harmless.

Justice Page dissented on all three of the majority's rulings.

Supreme Court Affirms Court of Appeals Ruling That Possession of Handgun Without Permit to Carry Requires Proof of Knowledge of Possession

State v. Ndikum, Minn.S.Ct., 7/11/2012.  This comes up from the court of appeals.  Read here.  Recall that an attorney brought a briefcase with a loaded gun into a courthouse; he explained that he did not know that the gun was in the briefcase.  He got charged anyway with various gun offenses.  He requested, but did not get, an instruction that knowledge is an element of both the felony charge of possession of a dangerous weapon within a courthouse complex; and of the gross misdemeanor charge of possession of a pistol in public.  The court of appeals had reversed this conviction and now the supreme court upholds the court of appeals.

The gross misdemeanor statute, the offense of conviction, states:

A person, other than a peace officer, as defined in section 626.84, subdivision 1, who carries, holds, or possesses a pistol in a motor vehicle, snowmobile, or boat, or on or about the person’s clothes or the person, or otherwise in possession or control in a public place, as defined in section 624.7181, subdivision 1, paragraph (c), without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor. A person who is convicted a second or subsequent time is guilty of a felony.

Minn. Stat. § 624.174, subd. 1a. As written, the statute contains no express mens rea or knowledge requirement.  However, legislative intent to impose strict criminal liability must be clear.  In re C.R.M., 611 N.W.2d 802 (Minn. 2000).  (That’s the kid who unwittingly brought a weapon onto school property.)  If the statute is a “public welfare statute” then it may be that the legislature has dispensed with a mens rea requirement.  But, this carry statute is intended “to promote the ability of law-abiding citizens to carry guns in public, not to restrict gun ownership and possession.”  The statute also carves out a number of exceptions to the permit requirement, including, pertinent (sort of) here, carrying a pistol between one’s home and place of business.  For these, and a couple other reasons, Justice Myers, writing for a unanimous court, holds that the state must prove that Mr. Ndikum knew he possessed the pistol.