State Sufficiently Proves Past Pattern of Domestic Abuse to Uphold Murder Conviction

State v. Anderson, Minn.S.Ct.  3/26/2009.  A jury convicted Mr. Anderson of first degree murder while committing domestic abuse, Minn.Stat. 609.185(a)(6), for the death of A.G., the one year old son of his girlfriend, Monica.  The main appeal issue had to do with evidence to prove the element of past pattern of domestic abuse.

This element requires that the state prove that “the perpetrator has engaged in a past pattern of domestic abuse upon the victim or upon another family or household member.”  Id.  What the state must prove, however, is the past pattern, not the individual acts that comprise the pattern.  State v. Cross, 577 N.W.2d 721 (Minn. 1998).  Mr. Anderson complained that the trial court had incorrectly admitted evidence of three instances of "past-pattern evidence":

First:  After a night of drinking at a local bar, Mr. Anderson and Monica argued about whether it was time to leave; Monica wasn't quite ready to call it a night.  Mr. Anderson was, so he dragged Monica half way out of the bar, pushed her the remainder of the way out.  Monica said that she was embarrassed but felt no physical pain.

This one goes to the prosecution.  The jury, the court concluded, could have decided that Mr. Anderson dragged Monica out of the bar with the intent either to frighten her or to inflict bodily harm upon her.  This is either assault in the fifth degree or misdemeanor domestic assault.

Second:  Some three years before the homicide,  L.W., Mr. Anderson's main squeeze during the summer - this all occurred up in Wikin County, (some of which sadly enough is currently under water), in the northwest part of the state where summers aren't all that long - wanted to go from Anderson's place out to a bar with friends; Mr. Anderson objected by pushing L.W. against the wall behind his bedroom door to keep her from leaving.  She said that she was both hurt and scared.  She then left.

Third:  The next day, L.W. came back over to Mr. Anderson's place to get her car; Anderson again didn't want her to leave and he again kept her from leaving, this time by forcing her down on the bed, then holding her arms to prevent her from getting up.  Anderson's father happened to be there and he told his son to knock it off.  As L.W. was leaving, however, Anderson followed her out into the yard, with a renewed desire to keep L.W. in reach.  Anderson's brother told Anderson to knock it off; Anderson took umbrage and the brothers "scuffled," during which Anderson punched his brother.

Now, Anderson argued that the thing with L.W. was just a "summer fling," and not a "significant romantic or sexual relationship" required by the statute.  Minn.Stat. 518B.01, subd. 2(b).  Not only that, it happened too long ago, three years before the homicide.  As for the dust up with his brother, it was just that, a "scuffle between brothers."  The state said that admitting these two instances was discretionary and not an abuse of discretion, that the defense arguments were all jury questions.  If all that isn't enough, then it was harmless error to have admitted them because the trial court properly cautioned the jury, and because there were plenty of other instances to which the defense had not objected.

Whew!  The court leaves all that dust up in the air.  The court grabbed that harmless error argument and ducked the defense objections all together.  Two errors out of three plays usually gets you sent down to Rochester.  Not so for Mr. Anderson.  Conviction and sentence of life is affirmed.

If The Keys Are in the Car, You're Likely "In Physical Control" for DUI Laws

State v. Fleck, Minn.Ct.App., 3/24/2009.  At the not unreasonable hour of 11:30 p.m., officers found Mr. Fleck asleep behind the wheel of his car.  The car was lawfully parked in the apartment complex parking lot where Mr. Fleck lived; the keys were on the console between the front bucket seats.  The problem was, Mr. Fleck was "obviously intoxicated."  Police arrested him for first degree driving while impaired.  On testing, his blood alcohol level was 0.18.  A jury convicted him and the court sent him to prison for 48 months.

Here's how the Court of Appeals framed the legal issue:

Is evidence that a person was found alone, intoxicated, and asleep behind the wheel of his operable motor vehicle parked at his residence with the keys on the center console sufficient to support convictions of driving while impaired by reason of being in physical control of a vehicle within the meaning of Minn. Stat. § 169A.20, subd. 1(1), (5)?

The short answer is, yes.  The Court distinguishes an earlier "sleeping it off in the car" case on the basis of the whereabouts of the car keys.  In State, City of Falcon Heights v. Pazkerski, 352 N.W.2d 85 (Minn.Ct.App. 1984), Pazderski slept in his car to avoid a fight with his girlfriend.  The keys weren't in the car, at least according to the appellate opinion.  Mr. Fleck's keys, on the other hand, were right there; that he had no intention of driving anywhere was "immaterial."

Dueling Banjos: If It's Neither Lothenbach Nor A Stipulated Facts Trial, Then What?

State v. McKissic, 2009 WL 670040, Minn.Ct.App., 3/17/2009.  The state charged Mr. McKissic with failure to register as a predatory offender.  Mr. McKissic decided to represent himself and eventually agreed to resolve the case.  This resolution devolved into a blur of procedural requirements and legal jargon.  Although it's unreported, it's worth of a look see.

Here are the apparent facts.  Both Hennepin County and Ramsey County charged Mr. McKissic with failure to register; the specific accusation was that a Hennepin County conviction for interference with a 911 call extended Mr. McKissic's original period of registration.  The Hennepin District Court, however, dismissed that Complaint for lack of venue.  Ramsey County then amended its Complaint to limit the alleged registration failure to the original term of registration.  (The amended allegation appeared to be that Mr. McKissic had moved without notifying the BCA.)  Mr. McKissic moved to dismiss the Ramsey Complaint for three reasons:  the previous Hennepin dismissal; lack of jurisdiction; and discovery violations.  The court received the Hennepin dismissal papers but only in support of Mr. McKissic's dismissal motion.  Ramsey denied the motion on all three grounds.

Here's where the resolution gets mushy.  In essence, the court and parties interspersed procedures and jargon from two distinct rules, such that the appellate court could not ascertain which of two procedures had been undertaken.  This confusion meant that it was not entirely certain just what could or could not be raised on appeal.

There were two criminal rules in play.  The first is Rule 26.01, subd. 3, which the Court of Appeals denominated the "stipulated facts" rule.  Here's what it says:

Subd. 3. Trial on Stipulated Facts. By agreement of the defendant and the prosecuting attorney, a determination of defendant’s guilt, or the existence of facts to support an aggravated sentence, or both, may be submitted to and tried by the court based on stipulated facts. Before proceeding in this manner, the defendant shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant's presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and the waiver shall be in writing or orally on the record. If this procedure is utilized for determination of defendant’s guilt and the existence of facts to support an aggravated sentence, there shall be a separate waiver as to each issue. Upon submission of the case on stipulated facts, the court shall proceed as on any other trial to the court pursuant to subdivision 2 of this rule. If the defendant is found guilty based on the stipulated facts, the defendant may appeal from the judgment of conviction and raise issues on appeal the same as from any trial to the court.

The second rule is Rule 26.01, subd. 4, which the Court denominated as the "Lothenbach trial" rule.  Here's what it says:

Subd. 4. Stipulation to Prosecution’s Case to Obtain Review of a Pretrial Ruling. When the parties agree that the court’s ruling on a specified pretrial issue is dispositive of the case, or that the ruling otherwise makes a contested trial unnecessary, the following procedure shall be used to preserve the issue for appellate review. The defendant shall maintain the plea of not guilty. The defendant and the prosecuting attorney shall acknowledge that the pretrial issue is dispositive, or that a trial will otherwise be unnecessary if the defendant prevails on appeal. The defendant, after an opportunity to consult with counsel, shall waive the right to a jury trial under Rule 26.01, subdivision 1(2)(a), and shall also waive the rights specified in Rule 26.01, subdivision 3. The defendant shall stipulate to the prosecution’s evidence in a trial to the court, and acknowledge that the court will consider the prosecution’s evidence and may find the defendant guilty based on that evidence. The defendant shall also acknowledge that appellate review will be of the pretrial issue, but not of the defendant’s guilt, or of other issues that could arise at a contested trial. The defendant and the prosecuting attorney must make the foregoing acknowledgments personally, in writing or orally on the record. The court after consideration of the stipulated evidence shall make an appropriate finding, and if that finding is guilty, the court shall also make findings of fact, orally on the record or in writing, as to each element of the offense(s).

Under the "stipulated facts" rule, a defendant is agreeing to a trial to the court instead of a jury, but on facts stipulated but not conceded.  If the court trial results in a guilty finding, then a defendant may raise any appropriate issues on appeal.  Under a "Lothenbach" trial, however, the court is presented with facts that are both stipulated and conceded.  Any appeal is limited to adverse rulings of pretrial issues that both parties have agreed are dispositive.

So, the moral here:  pick a rule and stick to it.

Oh, Brother, Where Are Thou, Indeed

 State v. Williams, Minn.Ct.App., 3/17/2009.  The state charged Prodochee Williams, age thirty-one, with first degree criminal sexual conduct, alleging that he had sex with his fifteen-year old half sister.  The amended Complaint alleged that Mr. Williams had a "significant relationship" with his half sister.  The defense moved to dismiss, arguing, successfully in the trial court, that "half-brother" is not included in the list of defined "significant relationships."  Minn.Stat. 609.341, Subd. 15(2).  The state appealed this pretrial ruling.

Here's the statutory definition of a "significant relationship":

any of the following persons related to the complainant by blood, marriage, or adoption: brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great-aunt.

The Court of Appeals flew down to the State Law Library and scooped up all of the dictionaries, legal and otherwise.  It seems that we live in more enlightened times, as the most recent editions of these dictionaries all defined "brother" to include "half brother."  Here, for instance, is what the Oxford English Dictionary had to say about the word, "brother" (1987):

The word applied to a male being to express his relationship to others (male or female) as the child of the same parent or parents.

. . . .

. . . The son of the same parents. But often extended to include one who has either parent in common with another (more strictly half-brother, or brother of the half blood)[.]

The Compact Edition of the Oxford English Dictionary 1132 (1987).

Well, that settles it, one would think. 

“Where the legislature’s intent is clearly discernable from plain and unambiguous language, statutory construction is neither necessary nor permitted and we apply the statute’s plain meaning.” Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536, 539 (Minn. 2007); see also Minn. Stat. § 645.16 (2006) (providing that when the language of a statute is “clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit”).

Not so.  Leave it to the legislature to muck things up.  (According to www.askoxford.com, "muck" is to behave in a silly or aimless way; it fits.)  It seems that the legislature has sometimes included "half-[whatever]" in its laundry lists of family relations.  This lets the court loose with hammer and nail for some statutory construction.  Here's the pithy conclusion:

If this court were to interpret the law to exclude half-brothers, the law would then include step-brothers (with no blood relation) and cousins (genetically more distant than half-brothers) but exclude a brother related by half blood. This result would both be illogical and contrary to the overall statutory purpose of prohibiting intra-family sexual contacts.

The Court of Appeals reverses the dismissal and remands.

---

Evelyn Mulwray: She's my daughter.
[Gittes slaps Evelyn]
Jake Gittes: I said I want the truth!
Evelyn Mulwray: She's my sister...
[slap]
Evelyn Mulwray: She's my daughter...
[slap]
Evelyn Mulwray: My sister, my daughter.
[More slaps]
Jake Gittes: I said I want the truth!
Evelyn Mulwray: She's my sister AND my daughter!

Chinatown, 1974.

Constitutional Challenge to Criminal DUI Test Refusal Fails on Both Due Process and Fourth Amendment Grounds.

Minnesota v. Netland, Minn.S.Ct. (February 12, 2009).  A jury convicted Ms. Netland of second degree criminal test refusal.  Ms. Netland argued that the manner in which the breathalyzer was administered to her violated due process; and that the criminal test refusal statute violated her right to be free from unreasonable searches and seizures. 

Police arrested Ms. Netland on suspicion of driving under the influence.  At the police station, an officer read her the implied consent advisory, which Ms. Netland acknowledged she understood; and permitted her to consult with counsel.  Counsel advised her to take the test; Ms. Netland asked the officer for a blood test.  The officer said, sorry, I'm only giving breath tests today.  She said, okay. 

Now, here the facts, I think, get a bit murky.  At first it seemed from the Opinion that poor Ms. Netland took the test nineteen times, but that's incorrect.  What she apparently did was to blow into the machine a great many times during the administration of the test.  The Intoxilyzer "times out" after four minutes.  During this first test, Ms. Netland apparently blew and blew into the damned machine nineteen (19) times; not once did the machine acknowledge her effort as sufficient.  (There is also a complaint that the officer didn't allow the machine to run its full, four minute course.)  The officer warned her early on in her breath efforts that she was on her way to a refusal, which is what happened.  (Indeed, the officer thought that Ms. Netland was trying to game the machine.)  At the end of the first test, distressed but undaunted, Ms. Netland asked to take the test again.  Exasperated and suspicious, the officer refused, and scored her as a refusal.  The officer did honor her request for an independent test, peeing in this instance.  This produced a reading of 0.036.  (The jury acquitted her of driving under the influence.)

The Court of Appeals had concluded that Ms. Netland's due process rights had been violated because she had not been given "a meaningful opportunity to obey the law" when the officer declined her request to take the breath test again.  The Supreme Court rejects such a due process standard out of hand.  Instead, the Court looks at the "unfairness"/due process claims that Ms. Netland made.

First, she said that the officer stopped the breath test before the machine had timed out, and then would not allow her to take a second test.  Second, she said that this testing behavior shocked (or, should, at any rate) the conscience of the court.  Justice Gildea, writing for only four members of the court, rejects both of these arguments. 

The Court also holds that the single exigency of the rapidly dissipating blood alcohol evidence authorizes the taking of a blood alcohol test without a warrant.  Justices Paul Anderson and Page dissent.  Justice Meyer had expressed similar views but in a felony vehicular operation Opinion, State v. Shriner, 751 N.W.2d 538 (Minn. 2008), but she did not join Justice Anderson's dissent.

Justice Meyer would not have reached the due process issue.  Rather, she would have upheld the Court of Appeals but on statutory grounds.  In her view of the statute, Ms. Netland's behavior did not violate the criminal refusal statute.  Justices Page and Paul Anderson joined this dissent.

Still No Access to Intoxilyzer Source Code

Abbott v. Commissioner of Public Safety, Minn.Ct.App., (February 17, 2009).  This is more Intoxilyzer 5000 source code discovery litigation.  The Commissioner revoked Ms. Abbott's license because she had been driving with a 0.09 alcohol concentration; she filed an implied consent.  In that proceeding she requested the source code.  In support of that request, she filed affidavits and memoranda, which the appellate court rather derisively characterized as mostly "various books and articles and [gasp] cases from other jurisdictions."

The implied consent statute says that the hearing is to be conducted according to the rules of civil procedure, except that pre-hearing discovery is "mandatory" but limited to four enumerated items.  The source code isn't one of those enumerated items.  Any other discovery requires an order of the court.  M.S. 169A.53.  Under the rules of civil procedure, a court may order discovery that is relevant "to the subject matter involved in the action," provided that the requester can show "good cause."   Minn.R.Civ.P. 26.02(a). 

The appellate court bats the statute and the civil rules around for a few paragraphs.  It then concludes that because Ms. Abbott is requesting non-mandated discovery - the source code - she must show either that the discovery is relevant; or, if not relevant, then she must show that there is good cause for its production.  Ms. Abbott failed in this instance to establish that the source code was relevant; and, she failed in this instance to establish good cause.

Meanwhile, the Commissioner's federal litigation to get his hands on the source code continues.

An Administrative License Revocation That Is Pending at the Time of a Subsequent DUI Arrest But Later Withdrawn is Properly Considered as an Aggravated Factor (Whew!)

Heino v. One 2003 Cadillac, Minn.Ct.App. (February 17, 2009).  Police arrested  Charlotte Heino on March 7, 2007 for fourth degree DUI.  The police gave her a seven day notice of license revocation. Ms. Heino filed an implied consent petition, a hearing on which the trial court scheduled for May 1, 2007.  On April 9, 2007, however, Ms. Heino waived the sixty day hearing requirement so the hearing got re-set to August, 2007.

On May 9, 2007, police again arrested Ms. Heino for DUI, this time charging her with second degree; the aggravating factors were her blood alcohol level (0.26) and the March 7, 2007 license revocation.  Police again gave her a seven day notice of license revocation; they also gave her a forfeiture notice for the Caddy, based upon the March 7, 2007 license revocation that was, at the time, pending judicial review.  Ms. Heino judicially challenged both the second license revocation and the forfeiture.

Eventually, Ms. Heino plead guilty to both the fourth and (amended) third degree DUI charges; it looks like she withdrew both of the implied consent challenges as part of the plea deal.  She went to trial on the forfeiture.  The trial court denied forfeiture, concluding that due process required that the administrative license revocation had to be final before it could be the basis of the forfeiture.  In this instance, this administrative action was not yet final at the time of the second DUI arrest because judicial review was still pending.  The Court of Appeals reversed.

The legal fight here appears to be whether to apply State v. Wiltgen, 737 N.W.2d 561 (Minn. 2007).  There, the state had also tried to use a prior administrative license revocation as an aggravating factor in a forfeiture, even though that administrative determination was still pending judicial review at the time of arrest and forfeiture notice.  Mr. Wiltgen won, however, because it had not been his fault that the judicial review had not been concluded; rather, it had been the result of a standing order from the trial court that delayed everyone's implied consent hearings until conclusion of the underlying criminal prosecution. 

The appellate court disagreed with the trial court's conclusion that for Ms. Heino mere availability of judicial review prevented the license revocation from serving as an aggravating factor.  While this was true at the time of the second arrest, it was no longer true when the forfeiture trial commenced.  The Court of Appeals felt that Ms. Heino had been a bit too cute by half:

Under the district court’s analysis, a person accused of drunk driving may file a PJR, [implied consent],  waive the 60-day requirement, and then prevent that revocation from ever being used against him or her by withdrawing the PJR prior to the forfeiture trial but after the 60-day window has expired. This would lead to an absurd result that is contrary to the statutory framework.

The appellate court also thought that Ms. Heino's property interest in the Caddy was a bit less deserving of respect than Mr. Wiltgen's liberty interest, one of the three interests to be balanced under Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976).  (If the aggravator sticks, Mr. Wiltgen goes to jail for a longer term than without it; Ms. Heino loses her nice wheels.)  Ms. Heino's voluntary withdrawal of the implied consent hearings also rather strongly suggested that the second Mathews factor - chance of erroneous decision - was "not substantial.

Say It Ain't So, Just Don't Say It Ain't True.

  State v. Leutschaft, Minn.Ct.App., 1/13/2009, Petition for Review pending.  Mr. Leutschaft was out in Anoka County in his pickup truck, tooling down Highway 65, tailgating a woman driving a minivan.  After a while - too long, apparently for Mr. Leutschaft - the minivan moved into a different lane.  As Mr. Leutschaft passed the minivan he pointed a handgun at the woman driving the minivan, then sped away.  The minivan driver phoned the cops, who stopped Mr. Leutschaft, then arrested him on suspicion of second degree assault.  At trial, Mr. Leutschaft admitted to the bullying driving behavior but contended that he only pointed his finger at the minivan driver, a gesture meant to convey that she should move over for oncoming (him) traffic more quickly.

The jury convicted Mr. Leutschaft of second degree assault.  He complained on appeal of prosecutorial misconduct.  The state took umbrage with the terminology, saying that "misconduct" implies ethical violations.  The state would prefer to denominate the "misconduct" as "prosecutorial error."  Judge Shumaker acknowledges the nomenclature if not the point.  Even "prosecutorial error" can deprive a defendant of a fair trial.

The appropriate niceties settled the court turns to the law of "prosecutorial misconduct."  There was no trial objection to any  of the alleged misconduct; "plain error" - its own nicety - rules apply.

First up, the prosecutor impeached Mr. Leutschaft by suggesting that he tailored his testimony to that of the minivan driver.  For instance:  the minivan driver did not tell the scene officers that during the driving events either that she was wearing sunglasses or on her cell phone; at trial she said that she was neither wearing sunglasses nor on her cell phone.  Mr. Leutschaft, in an attempted "gottcha!" moment, testified that she was wearing sunglasses and was have trouble with her cell phone.  This leads to these questions on cross examination:

Q. You got to listen to the testimony here of [Minivan Driver], right?

A. Yes, I did.

Q. She didn’t get to listen to yours, right?

A. I don’t know that.

The court says that this comes "dangerously close" to violating the no tailoring rule, which says that “the prosecution cannot use a defendant’s exercise of his right of confrontation to impeach the credibility of his testimony, at least in the absence of evidence that the defendant has tailored his testimony to fit the state’s case.”  .” State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006).   It was not, however, "plain error."

Next up:  "were they lying" questions.  On direct, defense counsel asked Mr. Leutschaft whether he pointed a gun at the minivan driver; he responded, "That is absolutely untrue."  Disturbingly, the the court says that this answer "opens the door" to the "were they lying" questions.  (So, in an exercise, the purpose of which we are all told is a "search for the truth" be sure that your client never utters the word, true, or any of its variants.)

To be fair, Judge Shumaker does launch into an extensive review of the jurisprudence of "were they lying" questions.  He points out that a majority of jurisdictions that have considered the issue had ruled that such questions are "categorically improper."  The main rationale for this determination is that neither the questions nor the answers have any probative value. 

The minority jurisdictions, including Minnesota, eschew a "bright line" rule in favor of a case by case analysis.  The rule that emerges from Minnesota cases is that such questions are permissible when the defense makes the issue of the credibility of the state's witnesses "in central focus."  The problems with this rule are obvious:

Since credibility is a ubiquitous issue in trials, except those without factual dispute that raise purely legal questions, it is difficult to imagine a situation when credibility in some sense is not held in central focus. More problematic is the fact that credibility is a broader concept than truthfulness versus lying. It also encompasses honest inaccuracy stemming from deficiencies in the ability or the opportunity to acquire personal knowledge of the facts; honest but faulty recall; and honest but inadequate narrative on the witness stand, which may have numerous linguistic, cultural, and cognitive influences.

The court opines that such "were they lying" questions should only be allowed "when the defense expressly or by unmistakable insinuation accuses a witness of a falsehood."  In this instance, Mr. Leutschaft's use of the word, "untrue" arguably opened the door to the prosecutor's questions.

Next.  Mr. Leutschaft portrayed himself on direct as conscientious about gun safety.  In response, the prosecutor asked questions about such high regard for gun safety, and also about a dismissed charge of carrying a gun without a permit.   The court thought that this later set of questions was off the mark; the absence of a gun permit made it neither less nor more likely that he would handle a gun safely by not pointing it at the minivan driver.  Again, though, it was error, but not plain error.

Mr. Leutschaft also complained about the prosecutor's closing argument, one part of which was a public policy argument about road rage.  The Court concluded that it was okay to use this characterization in discussing whether Mr. Leutschaft pointed a gun at the minivan driver; it crossed the line, however, to allude to more egregious acts that might culminate in an actual shooting.   Again, error, but not plain error.  Same with closing argument about the absence of a gun permit:  error but not plain error.

So, the truth may or may not set you free, but you'd best steer clear of the word.  True enough.

Is There a New Appellate Standard of Review of Convictions Based on Circumstantial Evidence?

State v. Tscheu, Minn.S.Ct., 12/31/2008.  There's a Crawford issue buried in this Opinion, reviewed on "plain error" analysis because there was no defense objection; errors, such as they were, were not "plain."  The bulk of the Opinion, however, is a debate whether the Court has changed the appellate review standard for convictions based upon circumstantial evidence.  Finally, there's a reminder to be sure to request prosecution disclosure of prior convictions in the standard Rule 9 disclosure request.

On Saturday afternoon, February 26, 2005, Bonita Thoms' stepson, J.B. came out to Thoms' house to fetch a camper that he stored on her property.  J.B. found Thoms' dog, which normally slept indoors, outside with ice crystals on its face; J.B. also saw water running on the ground outside the house.  Inside, J.B. discovered Thoms dead in the bathtub, with the shower running.  There was no sign of a forced entry.

A witness saw Thoms in her car approximately five miles from her home between 3:30 and 4:35 p.m. the previous day.  Dr. Amatuzio, who performed the autopsy, placed the time of death between 3:18 and 9:19 p.m. on Friday, February 25.  Dr. Amatuzio described various bruising on the body which lead her to conclude that Thoms had been restrained in the bathtub, causing her to drown.  The defense presented expert testimony that although Thoms died from drowning she could have died suddenly from an enlarged heart.

Mr. Tscheu worked that Friday, after which he bought some automobile parts from a Fleet Farm, then spent the evening changing the engine in his van.  He first told police that he had not seen Thoms since August 2004; he later admitted that he and Thoms were having an affair, that he had been to her house on that Friday, February 25, at which time they had consensual sex.  He then came home where he did, indeed, work on his van.  Mr. Tscheu suggested three other persons as the killer: one was in California at the time, one was in prison at the time.  Thoms apparently owed money to the third person, M.H.; a defense witness placed a similarly looking sedan as M.H. was driving at Thoms' house on that Friday evening.

Forensics found semen inside Thoms' rectum; the DNA profile of this semen matched the profile of Mr. Tscheu.  Forensics also found semen inside Thoms' perineum.  The DNA analyst testified that 99.95% of the general population could be excluded as a contributor of this semen.   Finally, forensics found a partial male DNA profile from Thoms' fingernail clippings.  At best, no more than 7.4% of the population could be a contributor; however, Mr. Tscheu could not be excluded as a contributor.

A jury convicted Mr. Tscheu of first degree murder.  On appeal he argued that the evidence was insufficient to support that conviction.  In a circumstantial evidence case, the majority holds that it is sufficient to sustain a conviction when:

all the circumstances proved [are] consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of his guilt.” State v. Johnson, 173 Minn. 543, 545, 217 N.W. 683, 684 (1928) (emphasis added).

To prevail, the defense must be able to point to evidence in the record that is consistent with a rational theory other than guilt.  Inferences that a jury draws from the evidence are to be given what the concurrence describes as " nearly complete deference."  The concurrence argues that the majority has de facto adopted the approach of the Eighth Circuit, which gives the government the benefit of all inferences that reasonably could be drawn from the evidence, thus abandoning the previous state approach of undertaking an independent evaluation of those inferences.

Mr. Tscheu also argued that the state failed to give proper notice of its intent to impeach him with his prior convictions.  Unfortunately, the Rule 9.01 boilerplate did not include a request for disclosure of prior convictions.  Moreover, the state did disclose the prior convictions in its Spreigl notice.  Mr. Tscheu also complained about the timing of a hearing to determine the admissibility of prior convictions should he testify, which did not take place until after he testified on direct.  It's not clear, however, that trial counsel requested the hearing any sooner than that; when the court ruled that the priors were admissible it then permitted the defense to reopen its direct examination in order to be the bearer of the bad news to the jury.

Finally, Mr. Tscheu argued that the trial court erroneously admitted two out of court statements, to neither of which did the defense object at trial.  So, the Supreme Court applied the "plain error" analysis in its review.  The first statement had to do with what a snow plow driver told a BCA agent; the agent's recount of this statement was "testimonial"  and not within any hearsay exception of the evidence rules, and thus not admissible.  The admission of the recount, however, did not affect the outcome of the case.  Under "plain error" this argument fails.  The second statement had to do with a deputy's findings about records of a motor vehicle transfer and of a conversation the deputy had with the previous owner of the vehicle.  The vehicle transfer records were not testimonial;  the conversation with the previous owner was.  Again, though, it did not satisfy the "plain error" requirement of affecting the outcome of the trial. 

Barenaked License Plates: It's the Law

State v. White, Minn.Ct.App., 1/27/2009.  A Bloomington police officer stopped Mr. White's car because he saw a glare from the license plate because it had a clear cover over it.  Somehow - it's not explained in the Opinion - this leads to finding a gun in the car.  Mr. White did not have a permit for the gun so the officer arrested him. 

Mr. White argued that the officer had been unduly parsimonious in the reading of the applicable defective equipment statute, Minn.Stat. 169.79, Subd. 7:

It is unlawful to cover any assigned letters and numbers or the name of the state of origin of a license plate with any material whatever, including any clear or colorless material that affects the plate’s visibility or reflectivity.

Amazingly, two of the three judges on the panel thought that this statute was ambiguous.  It just might, they thought, permit plate coverings so long as those coverings didn't affect visibility or reflectivity.  So, they - or their clerks - went over to the History Center and rooted around in the boxes of cassette tapes to find the legislative hearings on this statute.  Notably proud of this accomplishment, the Opinion quotes from these hearings extensively.  Their conclusion is that the phrase beginning, "including ..." is illustrative only.

So, get out the wash bucket and remove all that road grime from your plates.

A Valid Order for Protection Defeats Challenge to Entry Without Warrant

State v. Stephenson, Minn.Ct.App., 2/3/2009.  Mr. Stephenson's wife obtained an order for protection, which specifically prohibited him from being at his wife's residence.  Strangely enough, that's where the police went looking for him when he missed court.  He was there; the officer could see him relaxing in front of the television when he looked in the window.  Mrs. Stephenson admitted the officer, who then found Mr. Stephenson hiding in the bathroom; the officer promptly arrested Mr. Stephenson on the bench warrant, as well as violation of the order for protection.

Pretrial, Mr. Stephenson challenged the entry into the residence without a warrant.  The trial court said that Mr. Stephenson had no reasonable expectation of privacy since he wasn't supposed to be there in the first place.  The Court of Appeals agrees.  That he was the home owner did not create such an expectation, at least not when he's found hiding in the bathroom.  In addition, even if he did have such an expectation, it is not a reasonable one.  The court looks to other jurisdictions that have held that an expectation of privacy in a place from which the law has prohibited him is not reasonable.  Washington v. St. Albans Police Dep’t, 30 F. Supp. 2d 455, 457 (D. Vt. 1998). 

Asking for a "Different" Blood Alcohol Test Is Not Asking for an "Additional" Test.

Schulz v. Commissioner of Public Safety, Minn.Ct.App., 2/10/2009.  An officer stopped Mr. Schulz, then arrested him for impaired driving.  At the station, the officer offered Mr. Schulz a urine test; Mr. Schulz wanted a blood test, instead.  Mr. Schulz urinated for the officer, but did not renew his request for a blood test.

The Commissioner subsequently revoked Mr. Schulz's license.  At the Implied Consent hearing, Mr. Schulz argued that his right to an independent test had been violated in two ways:  the officer didn't advise Mr. Schulz of his right to an additional test, and the officer didn't provide a phone by which Mr. Schulz could arrange that test.  The trial court disagreed, and the Court of Appeals affirms.

Here's what the statute says about testing:

The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state. The failure or inability to obtain an additional test or tests by a person does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.

[Emphasis in the original.]  Mr. Schulz made his desire for a blood test known, but that was before the urine test.  He needed to renew his desire (request) after submitting to what the officer wanted; otherwise it doesn't count.  Further, the office has no obligation to assist in any way the procurement of an alternative test, even when the requester has said all the magic words (and said them at the right time). 

A Deaf Driver Who Reads and Writes English is not Entitled to Interpreter During DWI Arrest

State v. Kail, MN.Ct.App., 2/3/2009.  Police stopped Mr. Kail's car on suspicion of weaving within it's own lane and following another car too closely.  Mr. Kail can neither hear no speak, although he could read and write English.  After approaching Mr. Kail's car, the officer suspected that Mr. Kail may be intoxicated.  Mr. Kail ultimately produced a breath test reading of 0.09.  All communications between the officer and Mr. Kail were in written notes.

On motion to suppress all evidence because the officer did not provide Mr. Kail with a sign language interpreter, Judge Michael Fetsch dismissed the charges.  The state appealed.  The Court of Appeals reverses the dismissal and remands back to the trial court.

The Court of Appeals concluded that Mr. Kail was not "disabled in communication" under Minn.Stat. 611.32.  In pertinent part, this statute provides that a person is so disabled:

(a) because of a hearing, speech, or other communication disorder, or (b) because of difficulty in speaking or comprehending the English language, [the person] cannot fully understand the proceedings or any charges made against the person, or the seizure of the person’s property, or is incapable of presenting or assisting in the presentation of a defense.

The Court reached this conclusion by extending dicta from an implied consent case, Warner v. Comm’r of Pub. Safety, 498 N.W.2d 285, 288 (Minn. App. 1993), review denied (Minn. May 28, 1993).  The officer in that case had communicated by use of writing, gestures and lip reading.  That apparently suffices.

To learn more about the obstacles that hearing impaired persons confront in the justice system, see:  Michele La Vigne & McCay Vernon, An Interpreter Isn’t Enough: Deafness, Language, and Due Process, 2003 Wis. L. Rev. 843 (2003).

Failure to Give Accomplice Liability Instruction Results in New Trial in Arson Prosecution

State v. Williams, Mn.Ct.App. 1/20/2009).

A jury convicted Mr. Williams of first degree arson of the house in which he lived.  Shortly before the fire, Mr. Williams persuaded a gas station attendant to give him a container full of gas in exchange for Mr. William's driver's license as collateral for future payment of the gas.  Police eventually found an empty gas can in the trunk of Mr. Williams' car.  The police also discovered that Mr. Williams' 14 year old step son was at the house shortly before the fire started and that he had gasoline on his clothes shortly after the fire.

The state did not initially charge Mr. Williams with aiding and abetting arson.  At trial, Mr. Williams testified; he acknowledged leaving his license as collateral for the gas but denied setting the fire.  Rather, he said that he was driving to the Twin Cities when he learned of the fire.  At the close of evidence, the state then asked the court to instruct the jury that Mr. Williams could be convicted if he or another for whose act he was liable caused the fire.  This language is apparently optional language in the JIGS arson instruction so the trial court agreed to give it.  The defense did not ask for a separate accomplice liability instruction, CRIMJIG 4.01. 

The trial court committed plain error by not giving this accomplice liability instruction.  The error also affected Mr. Williams' substantial rights:

Plain error is prejudicial if there is a “reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

The main reason that this is so is because of the father and step-son relationship; the jury could have incorrectly based its decision on that relationship instead of on accomplice liability.  Mr. Williams gets a new trial.

The Gang's All Here, But They May Not Be Accomplices to Murder

State v. Pendleton, Mn.S.Ct. (1/29/2009).

The state charged Mr. Jeffery Pendleton with two counts of first degree murder for the stabbing death of Robert Berry, Jr. Mr. Pendleton got into a fight with Mr. Berry, in which various others either participated or egged on the participants.  The fight left Mr. Berry laying unconscious on the floor.  After a brief interlude, during which there was discussion among Mr. Pendleton and some of his associates about killing Mr. Berry, Mr. Pendleton and a few of his close associates bundled Mr. Berry into a blanket, drove him to the river bank where the state alleged that at least Mr. Pendleton stabbed him to death.   The jury convicted him of murder one.

On appeal, Mr. Pendleton argued that the trial court should have given an accomplice instruction that specifically stated that one of his close associates, A.C., was an accomplice as a matter of law.  The trial court gave only a general accomplice instruction, leaving it to the jury to decide who was or was not an accomplice.  Here's what the court had to say about A.C.'s role in these events:

A.C. was initially charged with the same crime as appellant,remained with the group the entire night, opened the house door while the group carried Berry to the car, initially lied to the police about the events of the night, and fled after the killing. But, there was no testimony that A.C. contributed to the conversation about killing Berry. Additionally, A.C. stayed near the car when the others stabbed Berry.

While the Opinion is a bit vague on this point, the implication is that the truck was not so far from where the stabbing was taking place.  Elsewhere in the Opinion, while discussing the sufficiency of the evidence, the Court threw out this dicta about Pendleton's liability for aiding and abetting an offense:

[E]ven if there was insufficient evidence to prove appellant’s direct involvement, he would also be guilty under a theory of aiding and abetting if he was intentionally present at the scene of the crime, knew his accomplices were going to commit a crime, and intended his presence to further that crime. State v. Mahkuk, 736 N.W.2d 675, 681 (Minn. 2007).

This would seem to fit A.C.'s behavior, which would make her an accomplice; nonetheless, the Court concluded that there was no error in not fingering A.C. as an accomplice: 

A district court judge is only required to name specific accomplices in the jury instructions if the facts are “undisputed or compel but a single inference.” State v. Robledo-Kinney, 615 N.W.2d 25, 33 (Minn. 2000).

The state called another associate, Morris Pendleton (not to be confused with Jeffery), to testify that he saw Jeffery Pendleton stab Mr. Berry more than once.  Morris has already been convicted, himself, of first degree murder; at his trial, Morris claimed to have seen the stabbing from a distance, atop the river embankment.  At his trial, the state introduced DNA evidence that put Morris a tad closer to the action, on the riverbank where the stabbing occurred; the state didn't bring any of this up during Jeffery's trial; the defense did.  On appeal, Jeffery complained that the state had suborned perjury with Morris's testimony.  The Court concluded that it had not because the state only questioned Morris about facts that the state believed to be credible.

The Court dispensed rather quickly with the remaining arguments of the sufficiency of the evidence and claims of prosecutorial misconduct.

More Dog Sniffing

State v. Baumann, Minn.Ct.App., 1/13/2008.

Over the Christmas Holiday, an apartment manager complained to the local police that a high number of people were coming in and out of a particular apartment, staying for a short amount of time, then leaving.  Police identified the occupant of this apartment, but the occupant had no prior drug arrests or convictions.  The police brought over the drug sniffing dog and let the dog sniff the common hallway.  The majority opinion says that the dog alerted on Mr. Baumann's apartment, while the concurring opinion says that the dog alerted on several apartments, including Baumann's.  On the basis of the alert, a judge issued a search warrant for the apartment which produce a quantity of marijuana.

Mr. Baumann argued that the police lacked a reasonable, articulable suspicion of criminal activity to have brought in the dog.  The dog's alert should have been, therefore, excluded from consideration by the judge who issued the search warrant.  Neither the apartment manager nor the police officer provided even an estimate of the number of persons coming and going from the apartment.  Neither provided even an estimate of the amount of time that each considered to be a "short time."  The manager's complaints were not based on behaviors that she actually observed. 

Not to worry.  The officer could reasonably draw the suspicion of drug activity, a suspicion that was "something more" than an unarticulated hunch.  The court relies upon State v. Davis, 732 N.W.2d 173, 176 (Minn. 2007).  In that case, the apartment manager had a report from a maintenance worker that there were grow lights in Davis's apartment, and that Davis would not allow maintenance workers into the apartment to investigate a water leak.  Just why Davis is "on all fours with these facts isn't really explained.  The concurrence does acknowledge that whether police were acting on an unarticulated hunch "is very close:"

Hopefully, our decision will not be seen by police as yet a further expansion of dog-sniff searches over constitutionally protected privacy expectations.

Woof.

The Sheriff Will Leave the Lights On ... And Send You the Bill

 Jones v. Borchardt, Mn.Ct.App., (1/6/2009).

The Minnesota Court of Appeals has solved (part of) the budget shortfall.  The Olmsted County Attorney charged Mr. Jones with three counts of aggravated robbery.  The district court set bail at $100,000.00.  Eight months later, Mr. Jones, still in jail, pled guilty to all three counts.  The Court sentenced him to a seventy-eight (78) month executed term.  Seven days later, the Department of Corrections fetched Mr. Jones from the jail to commence serving his sentence.  The Sheriff sent Mr. Jones a room and board bill for his entire stay, to the tune of $7,150.00.

It seems that Minnesota has a statute that authorizes this, M.S. 641.12,S. 3(a):

A county board may require that an offender convicted of a crime and confined in the county jail, workhouse, or correctional or work farm pay the cost of the offender’s room, board, clothing, medical, dental, and other correctional services.

Mr. Jones thought that this was piling on.  He said that he would pay for the seven days between sentencing and transfer to DOC, but all of that pretrial time the county should eat.  That's because it was only on the day of sentencing that Mr. Jones had both been "convicted of a crime" and "confined in the county jail ..."  The Court of Appeals rejects this interpretation in favor of a more fiscally aggressive approach.  The Sheriff can impose the room and board fee so long as its renters don't get themselves acquitted.  If there's no conviction, there's no payday.

So, how does the Sheriff collect its rent?  Most any way it likes.  It can, apparently, grab canteen money that girlfriend or Mom leaves at the jail.  (The Sheriff can't grab DOC canteen moneys, but DOC does a nice enough job of that on its own.)  Once the renter checks out, the Sheriff can bring a small claims action.  There is no statute of limitations stated in this statute, but, I suppose, more general limitations statutes would apply.

No Heat of Passion Instruction in This Double First Degree Premeditated Murder Prosecution

State v. Keuren. MN.S.Ct., 12/18/2008.

 

A jury convicted Mr. Keuren of two counts of first degree premeditated murder; the trial court imposed two consecutive terms of life imprisonment without possibility of parole. Mr. Keuren argued, among other arguments on appeal, that the trial court should have given an instruction on first degree manslaughter.

Keuren dated Lee for some four years.  Just before he and Lee were to marry Lee called everything off.  "Devastated" by the breakup, Keuren broke into Lee's home and assaulted her; after that the court imposed a no contact order and Lee started dating another man.  Keuren planned either to kill himself, or to kill Lee; at times he considered killing both Lee and himself.  He wrote something of a suicide note in which he complained bitterly that Lee was intending to take away his Vikings tickets.  On his way over to Lee's home, Keuren decided only to kill himself in her presence.  When he got there, Lee was in bed with her new beau.

Finding the couple in the bedroom, Keuren immediately shot himself twice in the neck; neither wound was fatal.  New boyfriend tried to get the gun from Keuren during which Keuren shot him.  Keuren reloaded the gun.  Lee then told him, oh, by the way, I miscarried with your child.  Keuren then shot Lee twice.  He apparently kept shooting; the medical examiner determined that Lee had been shot a total of six times.  After all this mayhem, and before the police arrived, Keuren called his Dad to apologize.  The apology was limited somewhat, however, as the police had to shoot Keuren three times to get him to drop the gun.

The trial court instructed on first degree premeditated murder and on second degree murder; the court declined to instruct on first degree heat of passion manslaughter.  Keuren argued that finding Lee in bed with her new beau was enough to require a manslaughter instruction.  The trial court and the supreme court disagreed.  This discovery is not enough, at least in Minnesota, to establish that Keuren's "reason was clouded and his willpower weakened," the classic definition of "heat of passion" manslaughter.    State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2003).  For Lee, Keuren argued that the news of the miscarriage "provoked his passion" sufficiently to require the manslaughter instruction.  Again, no one agreed with that argument.  In the end, the court said that Keuren only established that he was suicidal and angry; neither of those emotional states supports the requested instruction. 

In a footnote that prosecutors will immediately begin to bandy about, the court warned that the mere existence of the violation of a no contact order would be enough to defeat any requirement of giving a manslaughter instruction.  It's hard to see how this squares with the current law on when to give instructions on lesser included offenses articulated in State v. Dahlin, 695 N.W.2d 588, 598 (Minn. 2003):

When a defendant requests a lesser-included offense instruction, the district court must give the instruction if the lesser offense is included in the charged offense and if the evidence provides a rational basis to both acquit the defendant of the charged offense and convict the defendant of the lesser-included offense.

At any rate, the footnote is dicta, at least for now.  In a concurrence, Justice Meyer suggests that this exclusion is a natural extension of an opinion that she wrote five years ago, Stiles v. State, 664 N.W.2d 315 (Minn. 2003).  Stiles and some of his buddies was doing a drug deal; instead of paying for the drugs the plan was to rob the supplier.  Stiles pointed a loaded shotgun at the supplier.  When the supplier resisted and reached toward his waist, Stiles shot him.  Stiles' "aggression" in provoking a response from the supplier eliminated Stiles' entitlement to a heat of passion manslaughter instruction.  Going to your former girlfriend's house - no contact order or not - intending to kill yourself doesn't seem quite the same kind of provocation.

In other issues, Keuren argued, unsuccessfully, that the prosecutor argued in closing argument that he had tailored his trial testimony to fit the evidence.  State v. Swanson, 707 N.W.2d 645 (Minn. 2006); that he was entitled to a change of venue; and that an assistant county attorney could not attend the grand jury in place of the county attorney.  On this last issue, the court had rejected this contention in State v. Clark, 755 N.W.2d. 241 (Minn. 2008). 

A Sentence of Incarceration is "Final" for Blakely Purposes, Even When Restitution is Left Open.

State v. Hughes, Mn.S.Ct., 12/18/2008.

Mr. Hughes pled guilty to aggravated robbery.  The court imposed an executed sentence, which was an upward departure; the court also ordered Mr. Hughes to pay restitution, to be determined by probation subject to his right to a hearing.  After sentence but before determination of the amount of restitution the U.S. Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004).  Mr. Hughes convinced the trial court that his conviction was not final until the amount of restitution was determined so that he was entitled to a Blakely hearing on aggravating factors.  The Court of Appeals reversed, State v. Hughes, 742 N.W.2d 460 (Minn.Ct.App. 2007).  The Minnesota Supreme Court agrees with the Court of Appeals.

The Court says that the trial court imposed Mr. Hughes' sentence when it pronounced the sentence of incarceration and general restitution obligation.  Consequently, his time for direct appeal expired ninety days later, which happened to be one week before the date of the Blakely opinion.  Hughes tried to invoke several other procedural rules by which to stretch the "pendency" of his right of appeal, all without success.

A Defendant's In Court Explanation For Rejecting A Plea Offer May be Admissible Under Rule 410.

State v. Brown, Mn.Ct.App., 12/16/2008.

The State charged Mr. Brown with attempted second degree murder, and with possession of a pistol without a permit.  The state offered a plea to the attempt, with a recommended sentence of 130 months.  At the pretrial, in the midst of making a record of this offer, Mr. Brown engaged in a spirited colloquy with the trial court, after which he entered a plea of not guilty.  Among other statements, Mr. Brown asserted a defense of self defense and defense of others, and claimed that he had a permit for the pistol.

At trial, Mr. Brown testified, again asserting his claims of self defense and defense of others.  He also testified that he did not have a permit for the gun.  The prosecutor was all over this, asking if it wasn't true that Mr. Brown had previously told the court that he did have a permit.  After the trial court over ruled the objection to the question, Mr. Brown stated that he did recall saying that.  The defense thought that Mr. Brown's statements during the discussion of the plea offer were excluded from evidence under Rule 410, which states in pertinent part:

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.

The Court of Appeals agreed with the trial court's ruling.  It pointed out that Mr. Brown neither pled guilty nor offered to do so.  In fact, he mostly complained that he should not have been charged with the attempt because his actions were justified, and then he lied about having a gun permit. 

Whether Rule 410 excludes a defendant's statements is a question of law that the appeals court reviews de novo.  Whether the rule excludes statements that are made in response to a plea offer made by the state is to be decided under the totality of the circumstances, employing a two step inquiry.  First, did the defendant exhibit an actual subjective expectation to negotiate a plea at the time of the discussion; and, second, was the expectation reasonable under the totality of the objective circumstances.

Now, the colloquy that is reproduced in the Opinion does support the conclusion that Mr. Brown had no interest in pleading guilty to the attempt charge.  At the same time, he had no need to say anything about the permit charge because the deal called for its dismissal.  His admittedly false statement about having a permit was a throw away at the time he made it.  The court could have admitted the pretrial false claim about having a permit without any regard for Rule 410 at all.  Instead, the court engages in a Rule 410 analysis of other statements then includes this permit claim into the mix.

Multiple Sex Acts of Various Kinds Support Upward Departure

State v. Abrahamson, Minn.Ct.App., 12/9/2008.

Mr. Abrahamson plead guilty to first degree criminal sexual conduct - sexual penetration of a person under 16 by an offender who has a significant relationship with the victim including multiple acts of sexual abuse over an extended period of time - and also to exposing a child to methamphetamine activity.  During the plea, Mr. Abrahamson admitted to engaging in multiple acts of sexual abuse, including sexual touching and "penetration, but denied penetrating [the child's] vagina or anus."  Mr. Abrahamson waived a jury sentencing hearing on the state's motion for an upward departure, which the state based on these grounds:

(1) the offense occurred over a period of five to six years; (2) the minor victim was treated with particular cruelty; (3) the minor victim was forced to watch pornographic movies; (4) the minor victim was told that appellant wanted to photograph her without clothes; (5) there was use of and exposure to illegal drugs; and (6) overall, the conduct was far more egregious than the usual child-sexual-abuse case.

The trial court determined that there were factors that supported an upward durational departure.  Among them were "the multiplicity of trauma and the sex acts," and viewing of pornographic movies.  The Court of Appeals accepts these two factors, but points out that under the offense of conviction multiple sex acts, alone, cannot serve as a departure factor because it is an element of the offense.  On the other hand, "the variety in the sexual acts is a valid reason for departure."  See Rairdon v. State, 557 N.W.2d 318 (Minn. 1996).  The Court of Appeals also agreed with the trial court that the use of pornography as a prelude to the sexual acts supported a departure.  (It is not entirely clear from the opinion, however, that Mr. Abrahamson admitted to this behavior during the plea hearing and Blakely waiver.)

The Court of Appeals somewhat reluctantly agreed that exposing the child to methamphetamine was not a valid factor for departure.  The Court acknowledged that the conviction for such exposure could not be the basis of a departure,  because it was the basis for the conviction on the other count to which Mr. Abrahamson pled.  State v. Misquadace, 644 N.W.2d 65 (Minn. 2002).  The record did not sufficiently establish that such exposure was a part of the CSC I conviction, and so it does not support a departure.

Collateral Attacks on the OFP Statute Not Permitted as Defense to Criminal Prosecution for Violation of OFP; No Authority in OFP Statute to Forfeit & Destroy Firearms.

State v. Romine, Minn.Ct.App., 12/9/2008.

A.A. obtained an order for Protection against Mr. Romine, her estranged husband.  The Order prohibited him from, among other things, going to A.A.'s place of employment at Henry Sibley High School.  Romine initially appealed the issuance of the OFP but dropped the appeal after a while.

While the OFP was in force, Mr. Romine went up to the  high school to see the superintendent, whose office was in the high school.  As a result, the state charged him with violating the OFP, Minn.Stat. 518B.01, S. 14(b).

Mr. Romine made various constitutional challenges to the OFP statute but the Court says that he cannot collaterally attack the OFP statute as part of his criminal defense. The court relies upon what it says is the general rule that "a party’s failure to appeal the issuance of a court order precludes a collateral attack on that order in a subsequent proceeding," citing State v. Cook, 275 Minn. 571, 148 N.W.2d 368 (1967).  There is nothing terribly surprising in this ruling.  See, State v. Harrington, 504 N.W.2d 500 (Minn.Ct.App. 1993).  (A defendant who had not appealed from the issuance of a restraining order pursuant to chapter 609 was precluded from challenging the constitutionality of the restraining order in a subsequent criminal prosecution for a violation of the order.)

The defense raised a lot of other appeal issues, one of which was prosecutorial misconduct during closing argument.  The defense objected to two of the prosecutor's statements: 

“It wasn’t easy cross-examining a 14-year-old person, but that’s who [Romine] had testify here, a 14-year-old child about things that families try to hide, and that was a kind of painful exercise we had to sit through.” Romine also objected when the prosecutor stated:

Counsel would like you to simply make a mockery of our justice system, of court orders and seals and affidavits, and indicate that Mr. Romine was not personally served this at a courthouse on that date somehow. You folks can go and say, we think this is just not plausible. You have to say also that a strict court order for protection to prevent this sort of harm from happening to Ms. Romine is also not nonsense.

The state did not argue that these remarks were proper, so the appellate court assumed that they were.  Nonetheless, the court also concluded that the statements were harmless error.

Lastly, the appeals court held that the district could has no authority under 518B to order the forfeiture and destruction of Mr. Romine's firearms as part of a sentence for violation of subdivision 14(b).  Subdivision 14(l) does permit the court to restrict the possession of "pistols," but there is no authority to order the forfeiture and destruction.  The appeals court remanded the case for re-sentencing, at which time Mr. Romine may, if he wishes, raise the Second Amendment Supreme Court opinion, District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

One Burglary & One Assault Still Equals Two Crimes

State v. Holmes, Mn.Ct.App., 12/9/2008.

A.W. was at home enjoying a quiet evening of arguing with his girlfriend when his girlfriend's Dad and two brothers swooped into the apartment.  Mr. Holmes is one of the brothers.  Mr. Holmes assaulted A.W., possibly with a steel pole, no one is quite sure. 

The state charged Mr. Holmes with first degree burglary and with third degree assault; a jury convicted him and the court sentenced him on both offenses.  On appeal, he argued that because third degree assault is a lesser included offense of the first degree burglary he could not be sentenced on both counts.  In other words, no double dipping.  The Court of Appeals disagrees.

The Court of Appeals accepted the proposition that the third degree assault is a lesser included offense of the first degree burglary.  It also agreed that under Minn.Stat. 609.04, Minnesota's double jeopardy statute, he could not, therefore, be convicted of both offenses.  However, there's another statute in play, 609.585, which states:

Notwithstanding section 609.04, a prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered.

Mr. Holmes argued that "any other crime" had to be a crime other than the assault and since there was no other crime he could not be convicted and sentenced on both offenses.  The Court concludes that the third degree assault can serve double duty:  as the assault element of first degree burglary and the assault charge.  It is an "any other crime" under 609.585 notwithstanding its duplicate use. 

Instructional Error Requires New Trial Even Though State's Evidence Was Sufficient to Support Conviction.

State v. Jorgenson, Minn.Ct.App., 12/9/2008.

The Court reverses a terroristic threats conviction for faulty jury instructions.

Jorgenson had been in a romantic relationship with T.S. for a couple of years.  After a night of hard drinking, sex and some other, rather rude behavior by Mr. Jorgenson the couple were not in the best of moods.  T.S. had destroyed one of his video games.  While in the shower, Jorgenson began to sing a rather vulgar little tune describing all the things he was going to do to T.S..  After singing in the shower, Jorgenson carried out some of the threats, then threw T.S. out into the cold.

Here's the instruction that the trial court gave on the terroristic threats count [emphasis in original]:

First, the defendant threatened, directly or indirectly, to commit a crime of violence. You are instructed that assault is a crime of violence. It need not be proven that the defendant had the actual intention of carrying out the threat.

Second, the defendant made the threat with intent to terrorize another . . . or in reckless disregard of the risk of causing such terror.

. . . .

Third, the defendant’s act took place on or about October 13, 2006 in Stearns County.

The statute provides:  "Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another ..."  The defense did not object to the court's instruction so the review is for "plain error."

The state conceded that the instruction, "assault is a crime of violence," is incorrect because not all assaults are "crimes of violence.  Minn.Stat. 609.1095, S. 1(d).  This is, therefore, error, and it's a plain one.  State v. Vance, 734 N.W.2d 650 (Minn. 2007).  This plain error is also prejudicial; the court likens the instruction to one that eliminates a required element of the crime, an error that is not harmless beyond a reasonable doubt.    The court reverses the conviction and remands for a new trial, even though it also had determined that the state's evidence was sufficient to have supported the conviction.  The court does so, however, not without a dig at those of us in the trenches:

An appellate court, with its generous allocation of time in which to contemplate and decide issues, may devoutly wish that all parties involved at the trial level—prosecutor, defense attorney, and judge—were ever-errorless, despite time pressures, in assuring that specific and adequate instructions are given to a jury. In the absence of such specificity and adequacy, we are required to determine whether prejudice affecting the outcome of the case has been demonstrated.

Is the Governor listening? 

Alford meets MOC's & Blakely

State v. Verdon, Court of Appeals (12/9/2008).

Mr. Verdon has been battling over his Department of Corrections inmate designation, which in his case is adversely impacting his eligibility for prison programs.  It turns out that upon conviction the district court assigns a "Minnesota Offense Code" (MOC) on the warrant of commitment.  The Department of Corrections uses this code, in part, to determine the conditions of his confinement.  But the case isn't really about any of that bureaucratic stuff; it's really a procedural about putting in an Alford plea.  There's also a novel Blakely argument that gets undeserved short shrift. 

The state charged Mr. Verdon with first degree arson, felony terroristic threats, and felony criminal damage to property.  Mr. Verdon eventually entered a guilty plea to felony arson, under the holding of North Carolina v. Alford, 400 U.S. 25 (1970).  At the plea hearing, the prosecutor asked Mr. Verdon about the state's evidence.  Mr. Verdon acknowledge that each piece of evidence that the prosecutor asked him about existed, and that, if believed, the evidence supported the state's claim that he started the fire.  The "firestorm," as it were, ignited over Mr. Verdon's understanding that an officer claimed to have seen him holding a lighter fluid container.  Mr. Verdon acknowledged that this officer would be making certain statements, but he did not concede that those statements included the claim that he was holding lighter fluid. 

Based on this colloquy the trial court accepted the plea; the initial MOC, when translated, told DOC that Mr. Verdon had used a firearm in the commission of his crime.  This was plainly incorrect; litigation ensued with the final MOC translating to mean that he had used a "flammable." Mr. Verdon didn't like this MOC any better than the first one so more litigation ensued.  The upshot of all that litigation is the rather obvious rule that the MOC designation must have an adequate basis in the court record.

That record consists mostly of the Alford plea.  The court reminds us of the "better practice" by which to do this:

The “better practice” for developing a factual basis for an Alford plea is to discuss the evidence with the defendant on the record at the plea hearing:

This discussion may occur through an interrogation of the defendant about the underlying conduct and the evidence that would likely be presented at trial, the introduction at the plea hearing of witness statements or other documents, or the presentation of abbreviated testimony from witnesses likely to testify at trial, or a stipulation by both parties to a factual statement in one or more documents submitted to the court at the plea hearing.

State v. Theis, 742 N.W.2d 643, 649 (Minn. 2007).  Other acceptable methods include eliciting a defendant's testimony to establish a factual basis, State v. Ecker, 524 N.W.2d 712 (Minn. 1994); and using witness statements or testimony to develop a factual basis, State v. Goulette, 258 N.W.2d 758 (Minn. 1977). 

The Blakely claim is that the MOC is based on findings by the trial court that were neither found by a jury nor admitted by Mr. Verdon with resulting restrictions to his terms of confinement.  The court doesn't see this as an enhancement to sentence so Blakely has no application.

Oh, want to know what the final MOC turned out to be?  Ready?  "MOC F132A".  Really.