LEGAL-not so-EZE

LEGAL-not so-EZE©

A primer for lawyers & the legally curious. Bruno Law provides up-to-date legal analysis of recent criminal case law.

Written by: Samantha Foertsch and Stephen Foertsch

DATE: MARCH 2018

I. INVOLUNTARY INTOXICATION

A.  INVOLUNTARY INTOXICATION DEFENSE NOT PERMITTED IF SOURCE OF INTOXICATION UNASCERTAINABLE:  Appellant was convicted of indecent exposure.  The arresting officer testified at trial that Appellant appeared to be intoxicated, but no chemical tests were administered.  Appellant testified he smoked what he believed to shisha, flavored tobacco in a hookah, at the home of an unidentified acquaintance, but that he had an intense reaction, causing him to vomit and black out prior to the incident.  The district court found Appellant was not entitled to an instruction on voluntary or involuntary intoxication.
First, the Court of Appeals finds that the district court properly instructed the jury on the intent element of indecent exposure.  Indecent exposure is a general intent crime, because it simply prohibits willful conduct: voluntary, knowing, and intentional indecent or lewd exposures with no intent to cause a particular result.  Because indecent exposure is a general intent offense, the Court of Appeals next affirms the district court’s refusal to instruct the jury on the defense of voluntary intoxication.  The voluntary intoxication defense is available only for specific intent crimes, under Minn. Stat. § 609.075.
Lastly, the Court of Appeals finds the district court did not err in refusing to instruct the jury on the common law defense of involuntary intoxication.  Based on Appellant’s trial testimony, he sought to pursue a theory of innocent-involuntary intoxication, which occurs “when intoxication results from an innocent mistake by the defendant about the character of the substance.”  For an instruction on this defense, Appellant was required to make a prima facie showing that (1) he was innocently mistaken as to the nature of the substance taken, (2) the intoxication was caused by the intoxicating substance in question and not by some other intoxicant, and (3) he was temporarily mentally ill at the time of the offense.  

The Court of Appeals finds that Appellant did not identify what, if any, substance was the source of his intoxication, so he did not establish that he innocently mistook the shisha he voluntarily consumed for something other than the flavored tobacco he believed it to be. Also, because Appellant failed to show his intoxication was due to an unknown and unidentified substance, rather than the other substances in the shisha he voluntarily consumed, it is impossible to ascertain whether Appellant’s intoxication was caused by the tobacco, the flavoring, some unknown intoxicant, or something else he ingested that day. Finally, when police arrived, he attempted to hide his exposed genitals, which demonstrates he knew his actions were wrong. Thus, because Appellant did not make a prima facie showing on the elements of involuntary intoxication, he was not entitled to a jury instruction on the defense. State v. Mohamed Musa Jama, A17-0481, 908 N.W.2d 372 (Minn. Ct. App. Mar. 5, 2018).

II. SEARCH AND SEIZURE

A.  ROBBERY SUSPECT’S PURSE SUBJECT TO SEARCH INCIDENT TO ARREST WHEN IT REMAINS IMMEDIATELY ASSOCIATED WITH PERSON:  A grocery store investigator observed Appellant place two food items in her purse and leave the store without paying.  The investigator took Appellant’s purse when she tried to hand it to a friend who had also been in the store.  Appellant was handcuffed and escorted to the manager’s office with her purse, which was placed on the manager’s desk.  When police arrived, an officer arrested Appellant, who had outstanding warrants, and searched her purse, finding narcotics.  Appellant was convicted of fifth-degree controlled substance crimes and misdemeanor theft and she appealed, challenging the search of her purse.
A search of the arrestee’s person incident to their lawful arrest encompasses personal property immediately associated with the person, and the Minnesota Supreme Court has previously held that a “shoulder purse is so closely associated with the person that it is identified with an included within the concept of one’s person.”  State v. Wynne, 552 N.W.2d 218, 220 (Minn. 1996).  
Here, however, Appellant’s purse was detained by the store’s employee, so the question is whether it remained immediately associated with Appellant, an issue of first impression in Minnesota.  Prior cases have held that a purse may remain immediately associated with a suspect’s person, even if seized and the suspect detained, if the suspect was in possession of the purse when detained.  Because Appellant carried the purse when she was detained by the store employee, the purse remained immediately associated with her person during the detention, and police knew or had reason to know Appellant was in possession of the purse when detained, based on the store employee’s statement to police, the officer justifiably searched the purse along with Appellant’s person incident to her lawful arrest.  State v. Traci Rankin Bradley, A17-0466, 908 N.W.2d 366 (Minn. Ct. App. Mar. 5, 2018).

B.  ENTERING PROPERTY AND SEARCHING CAMPER IN BACKYARD VIOLATES IMPLIED LICENSE TO ENTER PROPERTY FOR “KNOCK AND TALK”:  B.F. saw his stolen camper in Respondent’s backyard and notified police.  The responding officer verified from the end of the driveway that the camper matched the missing camper’s description.  The officer drove halfway down the driveway and parked, then walked to the camper.  The VIN and license plate had been removed from the camper, but the officer found a partial VIN stamped on the camper’s frame, which matched part of the stolen camper’s VIN.  The officer then entered the camper and found an item of B.F.’s personal property.  The officer walked to the backyard garage, where he made contact with Respondent.  Respondent allowed the officer to search the garage, where additional items of B.F.’s personal property were found.  Respondent then consented to a search of his house, where more of B.F.’s property was found.  The district court denied Respondent’s motion to suppress all evidence found from the searches of his property, and Respondent was found guilty of possessing stolen property after a jury trial.  The Court of Appeals, however, found that the search of the camper violated Respondent’s Fourth Amendment rights and tainted the subsequent search of the home, and the State filed a petition for review.
The parties disagree as to whether the officer performed a trespassory search of the camper when he entered the property to examine it.   This question turns on whether the camper was located on Respondent’s property’s curtilage, property afforded the constitutional protections of the home.  The camper was within the curtilage of the property if located in area intimately tied to the home. 
Here, the part of the driveway on which the camper was parked was in close proximity to his home.  Part of the backyard and driveway were also bordered by a tall, opaque fence, a wooded area, and trees, which clearly demark his backyard and provide privacy to the area where the camper was parked.  The dirt driveway was also Respondent’s main route of entering his home, included a firepit in the center of a turnaround in the driveway, and was often used by Respondent for storage, activities closely related to the home and associated with the privacies of life.  While the driveway where the camper was parked is visible from the public road, the curtilage of a home need not be completely shielded from public view to maintain an expectation of privacy in that area.  Based on these facts, the Supreme Court finds that the camper was parked on the curtilage of Respondent’s property.
Next, the court considers whether Respondent gave the police express or implied license to enter onto the curtilage for a brief “knock and talk.”  Respondent had impliedly granted public access to his backyard to seek a back door entrance to the house and garage, based on the well-worn dirt area and definable pathway in the area where the camper was parked.  However, the police violated the limitations of this implied license to enter Respondent’s property.  The officer deviated substantially from the route that would take him to the back door of the house or garage to get to the camper, parked at the end of the driveway, past the house, and in the back corner of the backyard.  The officer entered and inspected the camper thoroughly before turning back to the house.  The officer’s purpose in entering Respondent’s property was to inspect the camper, not question the resident of the house.  He also remained long enough to thoroughly inspect the interior and exterior of the camper.  Thus, the examination of the camper was an unlawful search.  The Court of Appeals is affirmed.  State v. Quentin Todd Chute, A15-2053, 908 N.W.2d 578 (Minn. Mar. 14, 2018).  

III. CONTROLLED SUBSTANCES

A.  POSSESSION OF CHEMICAL REAGENTS OR PRECURSORS WITH INTENT TO MANUFACTURE METHAMPHETAMINE: ERROR TO NOT INSTRUCT JURY AS TO WHICH ITEMS IN DEFENDANT’S POSSESSION ARE CHEMICAL REAGENTS OR PRECURSORS:  Appellant was convicted of a number of offenses, including possession of chemical reagents or precursors to the manufacture of methamphetamine, under Minn. Stat. § 152.0262, subd. 1(b), after a search of his mother’s residence revealed methamphetamine, a bottle of Draino, batteries, a funnel, and a recipe for methamphetamine.  In its jury instructions, the district court did not instruct the jury as to which items in Appellant’s possession were chemical reagents or precursors under the statute.  Inconsistent with the model jury instructions, the jury here was instructed that one element of possession of substances with intent to manufacture methamphetamine is the defendant’s possession of chemicals or reagents with the intent to manufacture methamphetamine, but was not instructed that two of the substances found during the search were among those identified in Minn. Stat. § 152.0262, subd. 1(b) as “chemical reagents or precursors.”  It was plain error for the district court to omit such an instruction.  However, the Court of Appeals declines to reverse Appellant’s conviction, finding it is not reasonably likely the omitted instruction had a significant, or any, effect, on the jury’s verdict, because the jury heard testimony that the search revealed a recipe, ingredients, and equipment for making methamphetamine.  
However, Appellant’s sentences for possession of chemicals or reagents with intent to manufacture methamphetamine and a fifth-degree controlled substance crime, finding they are precluded by his sentence for a second-degree controlled substance crime.  His sentences for the second-degree controlled substance crime, being a prohibited person in possession of a firearm, and possession of a short-barreled shotgun are affirmed.  State v. Russell Vincent Winbush, A17-0344, __ N.W.2d __, 2018 WL 1247240 (Minn. Ct. App. Mar. 12, 2018).  

IV. SENTENCING

A.  DATE OF OFFENSE FOR “CONTINUING OFFENSE” IS ENTIRE DATE RANGE OF OFFENSE:  Appellant was required to register as a predatory offender due to a conviction in 1996 for third-degree criminal sexual conduct, which, under the sentencing guidelines “decayed” on September 23, 2014.  Appellant reported living on Larpenteur Avenue in St. Paul on June 9, 2013, but in October 2014, he failed to return an annual verification letter sent to that address.  He had previously returned two similar verification forms.  In May 2015, police spoke with the resident of the Larpenteur Avenue address, who said Appellant merely stayed with him a few times.  A few days later, police made contact with Appellant, who said he was living on Douglas Street and had previously lived in Winifred Street.  Appellant was subsequently charged with failing to register as a predatory offender from June 9, 2013, to August 4, 2015.  

Following a court trial, the district court concluded that Appellant was required to register and knew of this requirement as well as the requirement to update his address, which he failed to do. The district court found the offense took place from June 9, 2013, to August 4, 2015. At sentencing, the district court found Appellant had a criminal history score of 5, which included 1.5 points for Appellant’s 1996 conviction. On appeal, Appellant argues that the 1.5 points were inappropriate, because that conviction had decayed during the commission of the current continuing offense. He contends the “date of the current offense” was the last day of the offense, August 4, 2015, and, because the 1996 conviction decayed before that date, it cannot be used in calculating his criminal history score. The Court of Appeals affirmed the district court’s calculations, finding the date of the current offense was the first day of the offense, June 9, 2013.
The question of whether an offense is “continuing” for purposes of the statute of limitations generally turns on whether the language of the statute imposed a “continuing obligation” on the offender, which the Supreme Court finds that the predatory offender registration statute “unquestionably” does. An offender has a duty to register and update addresses with law enforcement, which are continuing obligations. Under the sentencing guidelines, a prior felony sentence cannot be used in a criminal history computation if a period of 15 years has elapsed since the date of discharge from or expiration of the sentence to the date of the current offense. The guidelines do not define “the date of the current offense,” so the Supreme Court looks to dictionary definitions, which indicate a “date” can be single date or a range of dates. Thus, the guidelines are not ambiguous, because the only reasonable interpretation is that the entire range of dates over which a continuing crime is committed constitutes “the date of the offense.”
15 years had not elapsed between the expiration of Appellant’s sentence for his 1996 conviction on September 23, 1999, and the start of his current offense on June 9, 2013, so the district court did not err in including the 1996 conviction in Appellant’s criminal history score. In affirming Appellant’s sentence, the Supreme Court also finds that failure to submit the question of the date of his offense to a jury did not violate his right to a jury trial. Appellant waived his right to a jury trial on the question of guilt, and a part of the district court’s guilt determination was the dates on which the offense was committed. State v. W.C. Luther Washington, A16-0834, 908 N.W.2d 601 (Minn. Mar. 14, 2018).

V. PLEA

A.  DISTRICT COURT’S PARTICIPATION IN PLEA NEGOTIATIONS IS IMPROPER AND TRIGGERS TOTALITY OF CIRCUMSTANCES INQUIRY INTO VOLUNTARINESS OF PLEA:  Appellant pleaded guilty to aiding and abetting second-degree unintentional murder arising from the death of E.S., which was witnessed by Appellant’s children.  Prior to her plea, the district court encouraged the parties to attempt to resolve the case, commenting on the  “serious situation” of having Appellant’s children testify against their mother.  Later, before trial, the State updated the court via e-mail regarding the status of the plea negotiations.  The court replied that it would not be willing to accept the defendant’s offer of second-degree manslaughter and thought the State’s offer of second-degree unintentional murder was more appropriate.  Once trial commenced, the court inquired about the negotiations.  After the first two days of trial, Appellant entered a guilty plea to aiding and abetting second-degree unintentional murder.  At sentencing, both parties and the court commented that the plea decisions were based largely on avoiding having Appellant’s children testify.  Appellant filed a postconviction petition seeking to withdraw her plea based on the district court’s improper participation in plea negotiations.  An affidavit submitted by Appellant’s trial counsel stated that, but for the court’s participation, the parties would not have agreed to a plea deal.  Appellant’s petition was summarily denied, and the Court of Appeals affirmed, finding that the district court did not excessively involve itself in negotiations.
The Supreme Court first considers under what circumstances a district court “participates” in plea negotiations, and explains its statement in State v. Johnson, 156 N.W.2d __, 223 (Minn. ___), that “the court should [not] … participate in the plea bargaining negotiation itself.”  The Minnesota Rules of Criminal Procedure do not discuss what the judge may do, if anything, as plea negotiations unfold.  The Supreme Court looks unfavorably upon recent Court of Appeals’ decisions interpreting Johnson as prohibiting the district court’s excessive involvement in plea negotiations, and “reaffirms the principle that a district court judge should not participate in plea bargaining negotiation itself,” “overrul[ing] court of appeals decisions to the extent that they are inconsistent with this principle.”  A judge may only approve or rejected plea submitted for judicial acceptance. However, this rule does not prohibit inquiries into the status of negotiations, sharing sentencing practices, or disclosing nonbinding plea and sentencing information at the parties’ joint request.
Here, the district court’s requests to be updated on the status of plea negotiations were appropriate, but the court participated in the negotiations when it gave unsolicited feedback regarding the parties’ settlement offers.  The Supreme Court notes that most of the information provided by the judge would not have constituted “participation” if the parties had jointly requested it, but it was not in this case.  A statement by the judge that a particular sentence seemed “more realistic” to him, however, essentially presented a counteroffer to the parties’ settlement offers, and under no circumstances should a judge generate or propose a plea deal not presented by the parties.
The court rejects a blanket rule of per se invalidity and automatic plea vacatur for a district court’s participation in plea negotiations.  Instead, plea withdrawal is appropriate only where a manifest injustice occurs, specifically, where the court’s participation in plea negotiations makes the defendant’s plea involuntarily, based on the totality of the circumstances.  Reversed and remanded to allow Appellant to amend petition under the rule of law announced by the Supreme Court.  Jetaun Helen Wheeler v. State, A16-0835, __ N.W.2d __, 2018 WL 1414708 (Minn. Mar. 21, 2018).

VI. ATTORNEY-CLIENT RELATIONSHIP

A.  DEATH OF CLIENT ELIMINATES ATTORNEY’S STANDING TO APPEAL ON CLIENT’S BEHALF:  Billy Glaze was convicted in 1989 of multiple counts of first-degree murder and second-degree intentional murder.  In 2007, he began postconviction proceedings that continued until his death in December 2015.  The State then moved to dismiss the postconviction petition as moot.  The personal representative of Glaze’s estate moved to substitute herself as the petitioner, but the district court granted the State’s motion to dismiss.  The personal representative’s attorneys then filed a notice of appeal on Glaze’s behalf.
The Court of Appeals finds that the appeal was not filed by Glaze, who died before the district court’s dismissal order, or his personal representative, who is neither listed in the caption nor mentioned in the body of the notice of appeal, but was instead filed by the attorneys who represented Glaze before his death.  Held, Glaze’s attorneys do not have standing to pursue his postconviction claims on appeal, as their attorney-client relationship with Glaze terminated upon his death and they are not aggrieved parties themselves.  The Court finds that it lacks jurisdiction to consider the appeal, because there is no aggrieved party before the Court.  Billy Richard Glaze v. State, A16-2028, __ N.W.2d __, 2018 WL 1414713 (Minn. Mar. 21, 2018).

VII. RESTITUTION

A.  HEARING MUST BE SCHEDULED WHEN RESTITUTION CHALLENGED:  After pleading guilty to second-degree murder, Appellant was ordered to pay restitution.  He challenged the order based on his inability to pay and requested a restitution hearing.  The district court amended its order without a hearing, reducing the amount of restitution.  Appellant’s postconviction petition challenging the restitution order was denied, and he appealed.
Appellant timely requested a hearing after the district court’s original restitution order, and was, therefore, entitled to a restitution hearing under Minn. Stat. § 611A.045, subd. 3(b).  The State’s argument that Appellant’s affidavit challenging the order was not detailed enough fails, as the plain language of Minn. Stat. § 611A.045, subd. 3(a), requires only that an affidavit to meet the offender’s burden of production be served on the State and the court five days before the restitution hearing.  This five-day deadline never arose, as a restitution hearing was never scheduled.  The district court abused its discretion by not scheduling a restitution hearing.  Rico Patrick Howard v. State, No. A17-0976, __ N.W.2d __, 2018 WL 1462296 (Minn. Ct. App. Mar. 26, 2018).

VIII. FIFTH AMENDMENT

A.  NO FIFTH AMENDMENT VIOLATION TO REQUEST DNA SAMPLE AFTER INVOCATION OF RIGHT TO REMAIN SILENT:  Appellant and two others were found at a residence during the execution of a search warrant at a residence.  In an upstairs bedroom, police found a short-barreled shotgun and shells next to a box containing mail addressed to Appellant.  Appellant is a convicted felon and not permitted to possess firearms.  In a squad car outside the residence, an officer read Appellant a Miranda warning, but Appellant invoked his privilege against self-incrimination.  Appellant was arrested and brought to jail.  At the jail two hours later, an officer asked if Appellant would sign a written consent to provide a DNA sample.  The form was read to and signed by Appellant.  While the DNA sample was being taken, Appellant asked why the sample was being taken.  After an officer told him it was to compare the sample to DNA found on the shotgun, Appellant said he "had already handled the gun.”  Later testing confirmed Appellant’s DNA profile was consistent with the major male profile developed from the samples taken from the shotgun.  

Before his trial for possession of a firearm by an ineligible person and possession of a short-barreled shotgun, Appellant motion to suppress the DNA evidence and his admission to handling the shotgun was denied. The Court of Appeals concluded officers could not reasonably have expected the request for written consent to a DNA sample would elicit Appellant’s incriminating statements, and the DNA sample was merely a physical test, not a testimonial communication, and not protected by the Fifth Amendment. The Supreme Court finds that consenting to a search and providing a DNA sample are not incriminating testimonial communications that trigger the Fifth Amendment’s privilege against self-incrimination. Appellant was not “interrogated” when asked if he would consent to taking a DNA sample or when officers responded to his inquiry about why they wanted to take his DNA sample, because neither act was reasonably likely to elicit an incriminating testimonial communication. Officers’ request required only a simple “yes” or “no,” and was not made in a threatening or accusatory manner. Their response to Appellant’s question about why they sought a DNA sample was an honest and straightforward declarative description of the evidence, and police may inform an accused of the evidence marshaled against him. The act of consenting to a search, such as providing a physical DNA sample, without more, is not an incriminating testimonial communication, as it does not disclose information or speak to guilt in any way. The DNA sample may, as here, lead to incriminating evidence, but when a statement is not testimonial, it cannot become so merely because it will lead to incriminating evidence. The Court of Appeals is affirmed. State v. Erik John Heinonen, No. A16-0229, N.W.2d , 2018 WL 1513728 (Minn. Mar. 28, 2018).

DATE: FEBRUARY 2018

I. CONFRONTATION CLAUSE

A.  NO CONFRONTATION CLAUSE VIOLATION TO ADMIT DOCUMENT WHOSE PURPOSE IS TO AUTHENTICATE NONTESTIMONIAL STATEMENTS:  During his jury trial for first-degree DWI and driving after cancellation, Appellant stipulated to his three prior DWI convictions but did not stipulate to his license being revoked prior to the date of these offenses in July 2016.  The State offered a three-page exhibit into evidence, the first page of which was a “Certificate of Order Sent” certifying that the attachment was a true, correct, and identical copy of an order in the Department of Public Safety’s records, and stating that the original had been mailed on a particular date.  The next two pages was an order informing Appellant that his license would be revoked for driving under the influence effective February 16, 2016.  No witness testified as to the foundation or authenticity of the exhibit and it was admitted without objection.  The State was then permitted to amend the driving after cancellation charge to driving after revocation, and Appellant was found guilty of all counts.  On appeal, Appellant argues the admission of the Certificate of Order Sent violated his right to confront witnesses and that the district court erred by admitting the exhibit with unredacted references to prior DWI convictions.
The Court of Appeals points to United States Supreme Court precedent and Minnesota case law that suggests documents introduced only for authentication purposes, rather than to prove a fact, are not testimonial.  Testimonial statements include (1) ex parte in-court testimony; (2) extrajudicial statements contained in formalized materials such as affidavits, depositions, prior testimony, or confessions; and (3) statements that would lead a reasonable witness to believe it would later be used at trial.  The Certificate of Order Sent does not fall under the first category, as it is not testimony that a reasonable witness would expect to be used in a prosecutorial fashion to prove a fact.  The second category is not representative of the certificate.  The certificate also does not fall within the third category, because a reasonable person would believe it would only be used for authentication purposes.

Additionally, the Court of Appeals finds the certificate is nontestimonial because it is duplicative of the underlying record, the Department of Public Safety record, which itself was nontestimonial. The Court of Appeals next concludes that district court committed plain error by admitting the unredacted exhibit, as it contained information Appellant had a right to exclude from the jury. However, Appellant’s substantial rights were not affected by the error, as the improper reference to his past convictions was not pervasive and the State put forth additional overwhelming evidence of Appellant’s guilt. Appellant’s convictions are affirmed. State v. Abdullahi Abdiqadir Noor, N.W.2d , A17-0349, 2018 WL 817284 (Minn. Ct. App. Feb. 12, 2018).
II. CRIMINAL VEHICULAR OPERATION

A. PASSENGER GRABBING STEERING WHEEL OF MOVING VEHICLE IS “OPERATING”: Appellant was drinking at a bar, after which B.H. drove Appellant and others to Appellant’s friend’s house. Appellant sat in the front passenger seat and began to argue with B.H. about directions. At one point, Appellant told B.H. she had missed a turn and took the steering wheel, yanking it toward himself. B.H. lost control of the vehicle and it crashed, causing great bodily harm to the three occupants. Appellant was charged with and convicted of CVO. The Court of Appeals affirmed. Minn. Stat. Ch. 609 does not define “operating,” and the appellate courts have not previously interpreted the term in the CVO context. Dictionary definitions of the term refer to acts that affect the function of a motor vehicle, which is to transport people or things. Manipulation of the steering wheel of a moving vehicle by a passenger falls within this definition. Held, “operating” a motor vehicle in Minn. Stat. § 609.2113, subd. 1, “means any act that causes a motor vehicle to function or controls the functioning of the motor vehicle, which includes manipulation of the steering wheel of a moving vehicle by a passenger.” Affirmed. State v. Tchad Hu Henderson, N.W.2d , A16-0575, 2018 WL 844382 (Minn. Feb. 14, 2018).

III. FORFEITURE

A.  STATUTE DOES NOT AUTHORIZE FORFEITURE OF INSURANCE PROCEEDS:  Appellant’s son crashed and totaled Appellant’s GNC Terrain SUV in a drunk driving incident, and police seized the vehicle.  Appellant planned to recover on his automobile insurance policy rather than recover the totaled vehicle.  Without Appellant’s knowledge, the police department told Appellant’s insurance company to hold any insurance proceeds, asserting a right to them.  Appellant did not learn of this conversation until after the 60-day statutory deadline for his right to file a challenge to the forfeiture.  Appellant filed the Demand for Judicial Determination anyway, arguing that the vehicle was improperly seized and that the insurance proceeds were not forfeitable.  The District Court rejected Appellant’s filing as untimely.  The Court of Appeals concluded that Appellant’s complaint was time-barred, but that insurance proceeds are not subject to forfeiture under Minn. Stat. § 169A.63.
If used in the commission of a “designated offense,” a motor vehicle is subject to forfeiture under Minn. Stat. § 169A.63, subd. 8(a).  By operation of the statute, “[a]ll right, title, and interest in a vehicle subject to forfeiture… vests in the appropriate agency upon commission of the conduct resulting in the designated offense.”  Id. at subd. 3.  A challenge of the forfeiture must be filed within 60 days of the vehicle owner’s receipt of notice of intent to forfeit.  Id. at subd. 8(b)-(c).  Appellant undoubtedly filed his challenge to the forfeiture of his vehicle after the expiration of the 60-day deadline.  
Appellant separately challenges the forfeiture of the insurance proceeds.  The phrase “right, title, and interest” conveys all interest in a piece of property.  The Supreme Court notes that “interest” is defined as “[a] legal share in something; all or part of a legal or equitable claim to or right in property,” and, in the vehicle forfeiture context, that property is the “vehicle subject to forfeiture.”  Only property rights in the vehicle are subject to forfeiture.  Insurance proceeds are payments due under an insurance contract about a vehicle and are not a property interest in the vehicle.  Whether such proceeds are forfeitable is not an issue properly litigated within the confines of Minn. Stat. § 169A.63.  The Court of Appeals is affirmed.  Russell Eldon Briles v. 2013 GMC Terrain, __ N.W.2d __, A16-0768, 2018 WL 845974 (Minn. Feb. 14, 2008).

IV. FIREARMS

A.  DRIVING UNDER INFLUENCE WITH PISTOL WITHIN ARM’S REACH IS CARRYING PISTOL “ABOUT THE PERSON’S CLOTHING OR PERSON”:  Police conducted an inventory search of Respondent’s vehicle following his arrest for DWI, during which they found a loaded handgun in the center console.  Respondent was charged with carrying a pistol while under the influence of alcohol, but the district court granted Respondent’s motion to dismiss for lack of probable cause, finding that Minn. Stat. § 624.7142, subd. 1(4), does not extend to the pistol in the center console.  The Court of Appeals affirmed, finding no physical nexus between Appellant and the pistol.
Minn. Stat. § 624.7142 makes it a crime for a person to “carry a pistol on or about the person’s clothes or person” while under the influence of alcohol.  The Supreme Court first looks to the dictionary definitions of “carry,” “on,” and “about,” finding that, taken together, the only reasonable interpretation of § 624.7142 is that a person carries a pistol on or about one’s person either by (1) physically moving the pistol, or (2) having the pistol in one’s personal vicinity, at least within arm’s reach, while moving.  The Court of Appeal’s “physical nexus” interpretation is unreasonable, because the statute does not prohibit only carrying a pistol “on” one’s person, and this interpretation would read the “or about” language out of the statute.
The complaint here was sufficient to survive Respondent’s motion to dismiss.  Reversed and remanded.  State v. Christopher Michael Prigge, __ N.W.2d __, A17-0403, 2018 WL 846426 (Minn. Feb. 14, 2018).

V. JUVENILE

A.  MILLER AND JACKSON DO NOT LIMIT AUTHORITY TO SENTENCE JUVENILE TO CONSECUTIVE LIFE SENTENCES WITHOUT POSSIBILITY OF RELEASE:  A juvenile at the time of his offense, Respondent was convicted of two counts of first-degree premeditated murder and sentenced to two mandatory terms of life imprisonment without the possibility of parole (“LWOR”).  Respondent petitioned for postconviction relief arguing his sentence violated Miller v. Alabama, 567 U.S. 460 (2012), and Jackson v. State, 833 N.W.2d 272 (Minn. 2016).  Respondent’s petition was granted and he was resentenced to two concurrent life sentences with the possibility of release after 30 years, after the district court concluded that Jackson made unavailable any information that would be elicited at a Miller hearing and any information which could theoretically support a consecutive sentence was beyond the court’s reach.
Respondent’s conviction was final before Miller, but he is entitled to retroactive application of Miller’s rule under Montgomery v. Louisiana, 136 S.Ct. 718 (2016).  Miller held that, before a juvenile is sentenced to LWOR, the court must take into account the differences between children and adults, distinguishing between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”  Montgomery clarified that Miller’s rule categorically prohibits LWOR for juvenile offenders who are not irreparably corrupt.  

The Minnesota Supreme Court recently held that the Miller/Montgomery rule will not be extended to multiple consecutive sentences of life imprisonment with the possibility of release after 30 years. State v. Ali (Ali II), 895 N.W.2d 237, 246 (Minn. 2017), cert. denied, No. 17-5578, 2018 WL 311461 (U.S. Jan. 8, 2018). Thus, the district court was mistaken in its belief that Miller limited its authority to impose consecutive sentences involving the possibility of release after 30 years in this case involving multiple first-degree murder convictions involving multiple victims. Jackson addressed whether the district court could re-impose a LWOR sentence on remand, which required a determination that the defendant fell within the “irreparably corrupt class” of juvenile offenders. The Minnesota Supreme Court concluded that too much time had passed since the defendant’s original sentencing, that a determination regarding permanent corruption was not possible. The district court was wrong in concluding that Jackson’s conclusions regarding a Miller hearing prevented it, at the time of sentencing, from exercising its discretion or considering all available facts relevant to a juvenile offender’s culpability and criminality, as this inquiry is fundamentally distinct from a Miller hearing. Reversed and remanded for a determination as to whether consecutive or concurrent sentences are appropriate. Brian Lee Flowers v. State, N.W.2d , A17-0750, 2018 WL DATE: JANUARY 2018

I. EXPUNGEMENT

B. TWO- AND FOUR-YEAR CONVICTION-FREE PERIOD MUST OCCUR BETWEEN DISCHARGE OF SENTENCE AND FILING OF PETITION: Appellant was convicted in 2000 of misdemeanor and gross misdemeanor harassment restraining order violations. In 2002, he was convicted of third-degree DWI. He filed petitions to expunge the HRO convictions in 2015. At issue is Minn. Stat. § 609A.02, subd. 3(a)(3)-(4), which says a petition is allowed if the petitioner was convicted of a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence, or convicted of a gross misdemeanor and not convicted of a new crime for a least for years since discharge of the sentence. The question is whether the waiting periods are only from the discharge date to the end of two/four years, or if they are the two-/four-year periods before the filing of the petition? Held, the two- or four-year conviction-free waiting period must occur any time between the date the sentence is discharged and the date the expungement petition is filed. Without deciding if Appellant’s petitions should have been granted, the Court of Appeals concludes that the district court is permitted to consider the petitions, because Appellant had no convictions in the two years immediately preceding his misdemeanor HRO expungement petition, and no convictions in the four years immediately preceding his gross misdemeanor HRO expungement petition. State v. C.W.N., N.W.2d , A17-0728, A17-0729, 2018 WL 256738 (Minn. Ct. App. Jan. 2, 2018).

II. DWI

A.  TRAHAN AND THOMPSON DO NOT APPLY RETROACTIVELY ON COLLATERAL REVIEW:  Appellant was convicted of test refusal before Trahan and Thompson were decided, so he filed a postconviction petition arguing the cases created a new rule with retroactive effect.  Trahan and Thompson, applying the United States Supreme Court rule announced in Birchfield v. North Dakota, established that Minnesota’s test refusal statute is unconstitutional with respect to warrantless blood and urine tests.  The Court of Appeals considers whether the new rule is substantive or procedural to determine its retroactive effect.
The Court reiterates that a substantive rule narrows the scope of a criminal statute by placing particular conduct beyond the State’s power to punish, while a procedural rule regulates only the manner of determining a defendant’s culpability.  The Court holds that Trahan and Thompson merely modified the procedure law enforcement must follow before administering a blood and urine chemical tests.  Now, police must either obtain a search warrant or establish exigent circumstances.  Trahan and Thompson do not limit the range of criminal conduct that may be punished, but instead alter the range of acceptable police conduct relating to chemical tests.  As a new procedural rule, it may not be applied retroactively.  Johnson v. State, __ N.W.2d __, A17-0842, A17-0883, 2018 WL 256745 (Minn. Ct. App. Jan. 2, 2018).  

III. RESTITUTION

A.  MANDATORY RESTITUTION FOR IDENTITY THEFT NOT A DUE PROCESS VIOLATION:  Appellant pleaded guilty to identity theft and the district court ordered him to pay the mandatory minimum restitution of $1,000 to each of the 66 victims.  On appeal, Appellant argues the restitution order violates due process and imposes an unconstitutional fine.
As to procedural due process, the Supreme Court finds that the Matthews balancing test does not apply to a restitution order at a sentencing hearing.  The order arises from the criminal process and Appellant received the full range of procedural protections afforded to all criminal defendants.  Even under Matthews, however, Appellant’s claim fails.  There was no risk of an erroneous deprivation of a private interest, because Appellant expressly admitted the material facts necessary for the restitution order.  Appellant also received notice of the mandatory restitution in a pre-plea investigation report and had an opportunity to be heard on his restitution challenges at his sentencing hearing.
With respect to substantive due process, the Supreme Court notes that rational basis review applies because no fundamental right is implicated.  The State has a legitimate interest in ensuring that identity theft victims are compensated for losses suffered when their personal information is unlawfully used.  The mandatory minimum restitution requirement is not an arbitrary method of compensating the victims who may never be able to fully account for their losses or harm, because damages are hard to discover and measure in the identity theft context.
Lastly, the Supreme Court confirms that the mandatory minimum restitution requirement is not a fine, because it is part of a defendant’s sentence and paid to the victims, not the State.  State v. Rey, __ N.W.2d __, A16-0198, 2018 WL 265283 (Minn. Jan. 3, 2018).

B.  OFFENDER’S INABILITY TO PAY CANNOT DISTINGUISH VICTIM’S RIGHT TO RESTITUTION FOR APPROPRIATE LOSSES:  Appellant was convicted of second-degree murder and ordered to pay restitution for funeral expenses and lost wages to the victim’s spouse.  Appellant objected, claiming the inability to pay while serving his 366-month sentence.  The district court found the items of restitution appropriate, but revoked its restitution order based on Appellant’s minimal potential earning capacity in prison.
Minn. Stat. § 611A.04 gives a crime victim “the right to receive restitution,” and directs the district court to consider the amount of the victim’s loss and the offender’s ability to pay.  The Court of Appeals rejects Appellant’s argument that the statute only confers standing to receive restitution, not an absolute right to receive it.  The statute’s language is plain that restitution is a right.  The statute gives the court discretion to deny restitution when no economic loss is proven and to determine the proper amount of restitution, but not to deny restitution altogether where there is an appropriate victim with valid expenses requesting a “reasonable” amount of restitution. 
Here, the victim’s spouse was an appropriate “victim” under the restitution statute, and the requested items of restitution were appropriate.  Denial of all restitution was contrary to the victim’s spouse’s right to restitution.  In its ultimate order, the district court considered only the offender’s ability to pay and its findings about the offender’s inability to pay were unsupported by the record.  State v. Davis, __ N.W.2d __, A17-1108, 2018 WL 414376 (Minn. Ct. App. Jan. 16, 2018).

IV. TRAFFIC STOP

A.  DRIVING ON LANE MARKING IS MOVEMENT FROM LANE:  Appellant challenges both his conviction for DWI and driver’s license revocation, arguing the stop of his vehicle, based on Appellant driving on but not over the fog line, was unconstitutional.  The Court defines “lane,” as used in Minn. Stat. § 169.18, subd. 7(a), which makes it a violation to move from one’s traffic lane, as the area between markings, but not the lane markings themselves.  Thus, Appellant driving on the fog line gave police a reasonable, articulable suspicion of a traffic violation.  His conviction and driver’s license revocation are affirmed.  Kruse v. Comm’r Pub. Safety, __ N.W.2d __, A17-0552, A17-0564, 2018 WL 312944 (Minn. Ct. App. Jan. 8, 2018).  

V. JURY INSTRUCTIONS

A.  LIMITING INSTRUCTION ON RELATIONSHIP EVIDENCE ENCOURAGED, BUT FAILURE TO DO SO SUA SPONTE NOT AUTOMATIC PLAIN ERROR:  After a jury trial, Appellant was convicted of domestic assault and theft of a motor vehicle.  Prior to trial, the district court found relationship evidence admissible over Appellant’s objection, and the evidence was introduced at trial through the victim’s testimony, without objection.  Appellant did not request a limiting jury instruction.  Appellant argues that the district court erred in allowing the relationship evidence without giving a limiting instruction sua sponte.  The Court of Appeals reviews the district court’s conduct for plain error.  Both parties agree that the district court’s failure to give a limiting instruction sua sponte was plain error, but disagree as to whether the error affected Appellant’s substantial rights.
The Court concludes, however, that the district court did not commit plain error, citing prior cases holding that a precautionary limiting instruction should be given in relationship evidence cases, even if none has been requested, but the failure to do so may not be plain error under the facts of a particular case.  Specifically, the Court highlights the Supreme Court’s decision in State v. Taylor, 869 N.W.2d 1 (Minn. 2015), which analogized prior conviction impeachment evidence to Spreigl evidence and held that the district court did not err in failing to provide a sua sponte limiting instruction.
Here, Appellant was represented by counsel, did not request a limiting instruction, and made no objection to the lack of instruction.  At the pretrial hearing, the district court also conducted a sound analysis of the probative value versus prejudicial effect of the evidence, which is supported by the record.  Furthermore, the relationship testimony was brief, limited, and not unduly emphasized.  The Court holds that the district court did not plainly err in failing to provide a limiting instruction sue sponte in this case.  However, the Court “again reiterate[s] the strong preference that a district court give a limiting instruction for relationship evidence at the time it is admitted and again during final jury instructions.”  State v. Melanson, __ N.W.2d __, A16-1567, 2018 WL 313074 (Minn. Ct. App. Jan. 8, 2018).  

VI. SURREPTITIOUS INTERFERENCE WITH PRIVACY

A.  PROOF OF ENTRY UPON ANOTHER’S PROPERTY WITH INTENT TO INTRUDE UPON PRIVACY NOT REQUIRED:  While staying at his brother’s home, Appellant was caught on the garage roof watching his niece’s friend undress for bed.  He was convicted of interference with the privacy of a minor, furnishing alcohol to a minor, and disorderly conduct.  On appeal, he argues the evidence is insufficient to support his privacy interference conviction because the State did not prove that he entered another’s property “with the intent to intrude upon or interfere with the privacy of a member of the household.”
Minn. Stat. § 609.746, subd. 1(e)(2), requires a violation of section 609.746, subd. 1, against a minor.  Section 609.746, subd. 1(a) describes surreptitious interference with privacy and includes three elements (1) entry upon another’s property, (2) surreptitious gazing, staring, or peeping into another’s house; and (3) does so with intent to intrude upon or interfere with the privacy of a member of the household.  The Court of Appeals finds that the statute is ambiguous as to what “does so” in the third element applies to.  Looking to former versions of the statute, the Court finds that the intent element applies only to the gazing element, and not the entry element.  Thus, the State was not required to prove Appellant entered his brother’s property with the intent to interfere with the privacy of a member of the household, and Appellant’s conviction is affirmed.  State v. Pakhnyuk, __ N.W.2d __, A17-0474, 2018 WL 313086 (Minn. Ct. App. Jan. 8, 2018).

VII. COMPETENCY

A.  COMPETENCY DETERMINED BASED ON GREATER WEIGHT OF EVIDENCE, WITHOUT REGARD TO BURDEN OF PROOF:  Appellant was charged with fourth-degree criminal sexual conduct and moved for competency and mental examinations.  After examinations by two doctors, the district court found Appellant competent to stand trial.    Minn. R. Crim. P. 20.01, subd. 5(f), requires the district court to determine whether “the greater weight of the evidence” supports a finding of competency.  Appellant argues the district court applied a standard that shifted the burden to the defense by relying on the analysis of one doctor who shifted the burden to Appellant to produce some evidence of incompetence, instead of requiring the State to demonstrate his competence.  
The Court of Appeals disagrees with Appellant, pointing out that neither the competency rule nor cases interpreting the rule include language that assigns to the State the burden of proving a defendant’s competence.  The procedural rules do not assign a “burden of proof” in a competency proceeding to the State, defense, or court.  “Rather, a district court determines competency… based on the greater weight of the evidence without regard to burden of proof.”  The district court applied this standard in Appellant’s case.  The record also shows that the greater weight of the evidence establishes that Appellant was competent to stand trial.  State v. Curtis, __ N.W.2d, A17-0373, 2018 WL 414299 (Minn. Ct. App. Jan. 16, 2018).

VIII. FIFTH AMENDMENT

A.  COMPELLING PROVISION OF FINGERPRINT TO UNLOCK SEIZED CELLPHONE NOT A TESTIMONIAL COMMUNICATION:  Police seized Appellant’s cell phone of Appellant, a burglary suspect, and attempted to execute a warrant to search the phone, but were unable to bypass the fingerprint scanner security lock.  Appellant refused to provide his fingerprint, but the district court ordered him to do so, and the Court of Appeals affirmed.  At trial, incriminating evidence from Appellant’s cell phone was admitted, and the jury found him guilty.

In this case of first impression, the Supreme Court is faced with determining whether the Fifth Amendment’s privilege against self-incrimination protects a person from being ordered to provide a fingerprint to unlock a seized cell phone. The Court holds that, because the act of providing a fingerprint to the police to unlock a cell phone elicits only physical evidence from the defendant’s body, and does not reveal the contents of his mind, there is no Fifth Amendment violation.
The Fifth Amendment bars the State from compelling incriminating oral and physical testimonial communications from a defendant. The United States Supreme Court has drawn a distinction between compelled acts that elicit testimonial responses, such as producing documents as evidence, and compelled acts that make a suspect or accused the source of real or physical evidence, such as providing a blood sample to the police for an alcohol content analysis. The Court notes that providing a fingerprint both exhibits the body and produces documents (the contents of the phone) while communicating some degree of possession, control, and authentication of the phone’s contents.
However, the Court determines that producing a fingerprint is more like exhibiting the body than producing documents, as it involves a display of the physical characteristics of the body, not of the mind, to the police, and is more like a “test” to gather physical characteristics, like a blood sample, voice exemplar, lineup, etc. Furthermore, Appellant’s participation in providing his fingerprint was irrelevant to whether his fingerprint actually unlocked the phone – whether his fingerprint unlocked the phone depended instead on whether the fingerprint scanner analyzed the physical characteristics of Appellant’s fingerprint and matched the characteristics of the fingerprint programmed to unlock the phone. State v. Diamond, N.W.2d , A15-2075, 2018 WL 443356 (Minn. Jan. 17, 2018).

DATE: DECEMBER 2017

I. FOURTH AMENDMENT

C. SEARCH OF GUEST’S PURSE REASONABLE AND WITHIN SCOPE OF PREMISES WARRANT UNDER TOTALITY OF CIRCUMSTANCES: Following the district court’s denial of Appellant’s motion to suppress evidence obtained from her purse during the execution of a search warrant while she was a guest at the subject premises, Appellant stipulated to the facts under Minn. R. Crim. P. 26.01, subd. 4., and the district court found Appellant guilty. On appeal, Appellant argues that, as a visitor not named in the warrant, she had a reasonable expectation of privacy in her belongings, including her purse, even if they were not in her possession when the warrant was executed. The Court of Appeals affirmed the district court, and the Supreme Court granted review.
Held, the search of Appellant’s purse was reasonable under a totality-of-the-circumstances analysis, specifically because: (1) the warrant application suggests police believed a woman lived at the home with the named suspect, and the parties agreed a purse is an item typically associated with women; (2) at the time of the search, the police did not know to whom the purse belonged; (3) the purse was found unattended in a different room than Appellant; and (4) it was reasonable for police to believe contraband could be found in Appellant’s purse. In its analysis, the Court declines to adopt all three tests proposed by the parties and used by other courts to determine when the search of a guest’s belongings exceeds the scope of a premises search warrant (the “physical possession test,” the “relationship test,” and the “actual notice test”), in favor of a reasonableness analysis based upon a fact-intensive inquiry into all surrounding circumstances. Because the search was reasonable, the district court did not err in denying Appellant’s motion to suppress. State v. Molnau, 904 N.W.2d 449 (Minn. 2017).

B. NON-PROBATIONER HAS DIMINISHED EXPECTATION OF PRIVACY IN COMMON AREAS OF RESIDENCE SHARED WITH PROBATIONER: Appellant shared a residence with his brother and J.S., who were both on felony probation and signed agreements providing consent to warrantless searches of their residence. Police received a tip that there may be stolen goods in the residence, and probation determined a warrantless search should be conducted. Appellant was outside the home when police and probation officers arrived, and initially refused to let them inside, relenting only after they threatened to knock the door down. Police asked if there were firearms inside, and Appellant said there were. In the hallway, police passed the open door to Appellant’s bedroom, through which they observed firearms. In a later interview, Appellant admitted to owning the firearms. Appellant, a felon, was subsequently arrested and convicted of receiving stolen property and being a felon in possession of a firearm. On appeal, he argues the district court should have suppressed the evidence found during the search and his statements to law enforcement about the evidence. Under the Fourth Amendment, warrantless searches of a probationer’s residence are reasonable if authorized by a condition of probation and supported by reasonable suspicion. United States v. Knights, 534 U.S. 112, 122 (2001). By choosing to live with an individual on probation, a co-resident assumes the risk that they, too, will have diminished Fourth Amendment rights in areas shared with the probationer. Thus, Appellant, who himself had been on probation in the past and admitted to knowing his brother and J.S. were subject to probation searches, voluntarily and knowingly took on the risk that the residence might be subject to probation searches. Additionally, the government’s legitimate interest in ensuring compliance with probation conditions supports the reasonableness of the search. Allowing a non-probationer co-inhabitant to object to probation searches would create a loophole allowing probationers to evade probation conditions by making a strategic decision to live with a non-probationer. The Court of Appeals notes, however, that a non-probationer still maintains an expectation of privacy in non-common areas of a residence shared with a probationer, areas under the non-probationer’s exclusive control, such as the non-probationer’s bedroom. Here, there is nothing in the record to indicate police reasonably believed Appellant’s brother or J.S. exerted any authority over Appellant’s bedroom, so they were not allowed to enter the bedroom merely because they were conducting a probation search of the residence. However, the search was lawful under the plain view exception to the warrant requirement, as police observed firearms in Appellant’s bedroom while standing in the shared hallway. Appellant’s admission that firearms were located in his bedroom, and police’s observation of firearms therein, also gave police a reasonable, articulable suspicion to conduct a protective sweep of the bedroom. State v. Bursch, N.W.2d , No. A16-1961, 2017 WL 6418216 (Minn. Ct. App. Dec. 18, 2017).

C. FIELD SOBRIETY TESTS NOT SEARCHES UNDER FOURTH AMENDMENT: Appellant was pulled over for speeding when police smelled alcohol on his breath. Appellant admitted to drinking two alcoholic beverages before driving. Police asked Appellant to exit his vehicle and had him perform field sobriety tests and a preliminary breath test, without asking him to complete the tests or informing him he did not have to perform them. Appellant was arrested for DWI after the PBT revealed an alcohol concentration of 0.13. Appellant also submitted to a DataMaster breath test, which showed a result of 0.12. Appellant’s driving privileges were subsequently revoked. Appellant argues the field sobriety tests and PBT were impermissible warrantless searches and the DMT lacked a reliable foundational basis. First, the Court of Appeals concludes that field sobriety tests are not searches for Fourth Amendment purposes. The tests are observations of the subject made by police, and do not involve the collection of physical evidence, and drivers are able to decline them. Roadside sobriety testing is merely an investigatory expansion of a traffic stop. Next, the Court finds that the PBT did not violate Appellant’s Fourth Amendment rights. The Court declines to address whether a PBT is a search entitled to the same treatment as other chemical tests post-McNeely, instead finding that Appellant consented to the PBT and, after the field sobriety tests, the officer was authorized to arrest Appellant and seize his breath incident to that arrest, without a warrant.
The Court concludes that the district court did not abuse its discretion in admitting the DMT result, and affirms the district court’s decision to sustain the revocation of Appellant’s driving privileges. Vondrachek v. Comm’r of Pub. Safety, N.W.2d , No. A17-0462, 2017 WL 6418089 (Minn. Ct. App. Dec. 18, 2017).

II. APPELLATE PROCEDURE

A. MISDEMEANOR APPEAL DEADLINE APPLIES WHEN DEFENDANT AQUITTED OF GROSS MISDEMEANOR, FOUND GUILTY OF MISDEMEANOR, AND GIVEN PETTY MISDEMEANOR SENTENCE: Appellant was acquitted of gross misdemeanor fourth-degree assault and misdemeanor disorderly conduct, but found guilty of misdemeanor obstruction, and the district court imposed a petty misdemeanor sentence. Appellant filed a notice of appeal 91 days after final judgement was entered, under Minn. R. Crim. P. 28.02, subd. 4(3)(a) (requiring notice of appeal to be filed within 90 days after entry of final judgement in felony and gross misdemeanor cases). At oral argument, both parties assumed the matter was a gross misdemeanor “case” for the purposes of appeal deadlines, and the parties argued whether there was good cause for a one-day extension to file the notice of appeal. Held, the matter became a misdemeanor or petty misdemeanor “case” when Appellant was acquitted of the gross misdemeanor charge and found guilty of a misdemeanor charge, triggering the 30-day misdemeanor or petty misdemeanor appeal deadline. The Court has no authority under the Rules of Criminal Procedure to extend the appeal filing deadline more than 30 days. Appellant’s appeal is dismissed as untimely. State v. Parnell, N.W.2d , No. A16-2009, 2017 WL 6418217 (Minn. Ct. App. Dec. 18, 2017).

III. THIRD-DEGREE MURDER

A.  WHERE DEFENDANT AND VICTIM ARE NOT MARRIED, NO ERROR TO REFUSE TO GIVE JOINT ACQUISITION INSTRUCTION:  Appellant was found guilty of third-degree murder for providing cocaine to a woman who later died.  At trial, Appellant argued he and the victim jointly purchased the cocaine.  Appellant was charged with third-degree murder under Minn. Stat. 609.195(b), which provides that “[w]hoever, without intent to cause death, proximately causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a [Schedule I or II] controlled substance… is guilty of murder in the third degree.”  At the conclusion of trial, the district court denied Appellant’s request that the jury be instructed that Appellant had not “given away” cocaine if the jury found that the victim and Appellant jointly acquired the cocaine. 
State v. Carithers, 490 N.W.2d 620, 622, 624 (Minn. 1992), established the joint-acquisition defense Appellant sought to raise at trial, holding that criminal liability could not be imposed where there was “joint acquisition and possession of drugs under circumstances where neither defendant’s conduct could be fairly characterized as involving a sale or transfer or delivery to the person who died.”  The Supreme Court explicitly limited it’s holding to the facts of the case, which involved a married couple that jointly acquired a controlled substance, id. at 620, 623-24, and has repeatedly reasserted Carithers’ limited scope.  The Court of Appeals declines to extend Carithers’ joint-acquisition defense to cases involving a non-married couple that jointly acquired drugs that killed one of them.  State v. Schnagl, __ N.W.2d. __, No. A16-1509, 2017 WL 6418215 (Minn. Ct. App. Dec. 18, 2017).

IV. SIXTH AMENDMENT

A.  REVOCATION OF STAYED SENTENCE BASED ON PROBATION VIOLATION NOT A NEW SENTENCE REQUIRING COMPLIANCE WITH BLAKELY:  Appellant pleaded guilty to being a felon in possession in 2012 and the district court stayed imposition of his sentence for five years.  The sentencing guidelines recommended a presumptive 15-month stayed sentence.  In 2017, the district court found Appellant violated his probation, vacated the stay, and executed the presumptive 15-month guideline sentence.  On appeal, Appellant argues the district court violated his Sixth Amendment right to a jury trial under Blakely by not imposing a stayed sentence, and imposing an executed sentence, which Appellant claims was an upward dispositional departure requiring jury findings or a waiver.
The Court of Appeals notes that the “critical question in this case is when, exactly, [Appellant] was sentenced” – more generally, when a defendant is sentenced on a stay of imposition: when the stay is granted, or when it is vacated.  Held, a defendant is sentenced within the sentencing guidelines when a stay of imposition is granted.  Sentencing occurs in two steps: (1) imposition of sentence, and (2) execution of the imposed sentence.  A stayed sentence can be either a stay of imposition or stay of execution.  For a stay of imposition, the guidelines provide that no sentence length is pronounced, and imposition is stayed to some future date.  So, while a stay of imposition lacks a defined length of imprisonment, it is still a “sentence” under the guidelines.
Thus, Appellant was sentenced when a stay of imposition was granted following his guilty plea in 2012.  The execution of his presumptively stayed sentence was the result of his probation violation, rather than a “new” sentence, and Appellant has no Sixth Amendment right to a jury for a probation revocation hearing.  State v. Bradley, __ N.W.2d __, No. A17-1024, 2017 WL 6418876 (Minn. Ct. App. Dec. 18, 2017).

V. CONDITIONAL RELEASE

A.  PHASE II OF CHALLENGE INCARCERATION PROGRAM NOT “RELEASE FROM PRISON”:  Appellant filed a civil suit against a MN DOC program manager, claiming his conditional release term was miscalculated.  He received a 51-month sentence and five-year conditional release term for first-degree test refusal in June 2007.  In July 2008, he moved into phase II of the Challenge Incarceration Program (CIP), which allowed him to reside at home.  Appellant he argues entering phase II triggered the start of his conditional release term, which would have then expired in July 2013.  Appellant began supervised release in December 2010, but was reincarcerated in March 2014.  He remained in custody until May 2014.  
The mandatory first-degree DWI five-year conditional release term begins when the offender is released from prison.  CIP is divided into three phases, and it is not until the completion of the third phase that an offender is entitled to supervised release for the remainder of his sentence.  Thus, an offender in CIP is not “released from prison” until after completion of phase III.  The Court of Appeals points to its recent decision in State ex rel. Huseby v. Roy, 2017 WL 4478212 (Minn. Ct. App. Oct. 9, 2017), pet. for review filed (Minn. Nov. 8, 2017), in which the court held that an inmate’s transfer to a residential work release program outside of a correctional facility did not constitute a release from prison and did not begin the inmates five-year conditional release term.  
Appellant’s conditional release term commenced when he was granted supervised release in December 2010.  Heilman v. Courtney, __ N.W.2d __, No. A17-0863, 2017 WL 6418873 (Minn. Ct. App. Dec. 18, 2017).

VI. EXPUNGEMENT

A.  CHARGE CONTINUED AND LATER DISMISSED WITHOUT ADMISSION OR FINDING OF GUILT IS “RESOLVED IN FAVOR OF PETITIONER”:  Appellant was charged with providing false identification to gain access to an airport security area and the State agreed to continue the case for dismissal, and no admission or finding of guilt  was made.  The charge was dismissed on August 1, 2016.  One month later, Appellant petitioned to have the charge expunged and the State objected.  Both a referee and the district court concluded that Appellant’s petition should be denied.
When a case is resolved in a petitioner’s favor, the court must grant expungement unless the agency whose records would be affected “establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.”  Minn. Stat. 609A.03, subd. 5(b).  In State v. C.P.H., 707 N.W.2d 699 (Minn. Ct. App. 2006), the court held that, for expungement purposes, a criminal charge that is continued for dismissal and subsequently dismissed, without an admission or finding of guilt, is resolved in favor of the petitioner.  The Court of Appeals clarifies that subsequent changes to the expungement statute in 2014 did not affect the holding in C.P.H., but instead extended the reach of the statute to a new class of individuals (those who admitted guilt or were found guilty but nonetheless successfully completed a diversion program or received a stay of adjudication).  Here, the district court properly determined that Appellant’s case was resolved in his favor.
However, the Court also concludes that the district court erred in finding that the State presented clear and convincing evidence that expungement of Appellant’s charge presented a unique or particularized risk of harm to the public that outweighs the unrebutted and legally recognized benefits that Appellant expects from expungement.  The district court made a number of errors in its factual findings, as the record did not support the findings.  The State also did not provide sufficient evidence to establish a genuine public safety concern, and the district court improperly analyzed the disadvantages to Appellant of not sealing the record when it seemed to require Appellant to prove specific disadvantages.  Reversed and remanded.  State v. A.S.R., __ N.W.2d __, No. A17-0284, 2017 WL 6418089 (Minn. Ct. App. Dec. 18, 2017). 

VII. DWI

A.  DATAMASTER TEST RESULT IS DIRECT EVIDENCE OF ALCOHOL CONCENTRATION:  Appellant challenges the sufficiency of the evidence to support his conviction for third-degree DWI, arguing the DataMaster breath test (DMT) result is only circumstantial evidence of alcohol concentration, and other rational inferences inconsistent with guilt can be drawn from the circumstances proved at his court trial.  More specifically, Appellant argues that, while the DMT reports a number representing alcohol concentration, the factfinder must rely on inference in determining whether that number accurately reflects the true alcohol concentration.
In this case of first impression, the Court of Appeals holds that a DMT result is direct evidence of a person’s alcohol concentration.  Evidence is direct when it directly addresses the fact in dispute.  It is circumstantial when proof of the fact in dispute requires an additional inference from the evidence.  Here, the fact in dispute is Appellant’s alcohol concentration, and the DMT’s report directly addresses that fact.  “While no measurement is perfect, that does not meant that all measurements are circumstantial evidence.”  The evidence is sufficient to support Appellant’s conviction.  State v. Brazil, __ N.W.2d __, No. A16-2058, 2017 WL 6567670 (Minn. Ct. App. Dec. 26, 2017).
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