April 2018

Date: April 2018

I. SENTENCING

A. SENTENCES FOR OFFENSES ARISING FROM SINGLE BEHAVIORAL INCIDENT MAY NOT BE HERNANDIZED: Appellant was convicted of and sentenced for nine offenses, including racketeering, controlled substance crimes, and conspiracy to commit controlled substance crimes arising from a number of controlled drug purchases. Except for a racketeering offense, the district court Hernandized all of Appellant’s sentences, imposing concurrent sentences for all offenses, for a total sentence of 189 months.
First, the court of appeals finds there was sufficient evidence to support all of Appellant’s convictions and that Appellant is not entitled to a new trial based on allegedly erroneous jury instructions or the prosecutor’s comments during closing argument. Next, the court of appeals finds that Appellant is entitled to be resentenced under the Drug Sentencing Reform Act, which was signed into law before Appellant was convicted, so the case is remanded for resentencing. The court of appeals does note that the district court did not abuse its discretion, as Appellant argues, by ranking Appellant’s racketeering conviction as a level nine offense.
However, the court of appeals finds that the district court improperly increased Appellant’s criminal history score under State v. Hernandez, 311 N.W.2d 478 (Minn. 1981). Multiple or concurrent sentences may not be imposed for multiple offenses arising from a single behavioral incident. Appellant’s offenses were part of a single behavioral incident, as his controlled substance offenses were committed with the intent of facilitating and sustaining the racketeering offense. While Minn. Stat. § 609.910 provides that a racketeering sentence does not preclude sentences for additional separate criminal acts, the district court’s use of the Hernandez method when sentencing Appellant for separate criminal acts unfairly exaggerated his sentence. Hernandized sentences may be applied only if Minn. Stat. § 609.035 authorizes multiple sentences. Here, multiple sentences were authorized under § 609.190, not § 609.035. On remand, the district court may not sentence Appellant under Hernandez. State v. Erick Carl Longo, No. A16-1995, 909 N.W.2d 599 (Minn. Ct. App. Mar. 26, 2018).

II. ROBBERY

A. “PERSONAL PROPERTY” IS ALL PROPERTY THAT IS NOT REAL PROPERTY: Appellant was convicted of simple robbery for taking a bottle of liquor from a liquor store without paying. He argues on appeal that the evidence was insufficient to support his conviction because a bottle of liquor is not “personal property,” and that the district court should have instructed the jury to determine whether he took “personal property,” rather than a bottle of liquor. Minn. Stat. § 609.24 makes it a crime to take “personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person’s resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property.” The statute provides no definition of “personal property,” so the court of appeals looks to the common and ordinary meaning of the phrase. While some lay dictionaries define “personal” as relating to a particular person, other lay and legal dictionaries define “personal property” as property that is not real property. Because the term “personal property” in § 609.24 is subject to more than on reasonable interpretation, it is ambiguous.
The court of appeals applies two canons of interpretation, the in pari material (related-statutes) canon and imputed-common-law-meaning canon, to resolve the statute’s ambiguity, which support its holding that “personal property” in § 609.24 simply means all property that is not real property, without regard to whether the property is owned by a person or a business entity. The court finds the evidence was sufficient to support the jury’s conclusion that Appellant took “personal property” from the liquor store.
As to the district court’s jury instruction that the jury needed to determine whether Appellant took a “bottle of liquor,” rather than “personal property,” Appellant argues the instruction denied him the right to a jury trial on an essential element of the offense, whether a bottle of liquor is personal property, and violated Minn. R. Crim. P. 26.03, subd. 19, that would have required the jury to determine whether he “took personal property.” Both arguments are rejected, as the court of appeals finds (1) whether a bottle of liquor is personal property is not a question of fact for the jury to consider, because, as a matter of law, it is personal property, and (2) the instructions fairly and adequately explained the law to the jury. State v. John Lee Bowen, No. A17-0331, 910 N.W.2d 39 (Minn. Ct. App. Apr. 2, 2018)

III. FOURTH AMENDMENT

A. FRUIT-OF-POISONOUS TREE DOCTRINE MAY BE APPLIED TO EVIDENCE FOUND DURING SEARCH RESULTING FROM UNLAWFUL DETENTION, EVEN IF EVIDENCE WAS ABANDONED PRIOR TO DETENTION: Police were following a car for turning without signaling when they thought a passenger, Appellant, had exited the car. An officer testified he found it suspicious that Appellant looked toward the officer, looked away, and then walked away. The officer approached Appellant, grabbed his arm, handcuffed him, and began questioning him. Appellant stated he had just eaten marijuana he had on him and was the subject of arrest warrants. The area was searched and a handgun was found in a bush. Appellant’s fingerprints were found on the gun, and he was charged with possession of a firearm by an ineligible person. He was convicted after a jury trial. On appeal, Appellant challenges the district court’s denial of his pretrial motion to suppress evidence of the handgun as the fruit of his illegal detention. The parties and the court of appeals agree that the stop of Appellant was unconstitutional, as his actions prior to his detention “support[] nothing more than a hunch, a mere whim, or a guess that [Appellant] had violated or was about to violate some law.” Next, the court finds that the district court’s conclusions that officers “learned no new information” from the illegal seizure that caused them to search the area near Appellant and that “the decision to search the area was made based on [Appellant’s] evasive conduct prior to being stopped” are not supported by the record. Instead, the record shows that after the illegal seizure, Appellant made a number of statements to law enforcement regarding active warrants and drug possession. Thus, the record supports a finding that the police decided to search the area based, at least in part, on what was learned after the illegal stop of Appellant.
Next, the court concludes that the handgun is fruit of the illegal stop of Appellant, based on the temporal proximity between the illegal detention and the discovery of the gun, the absence of any circumstances intervening between the detention and the search, the “blatantly offensive” nature of the police’s conduct in this case, and that the police would not have found the handgun without the illegal stop, given its location in a bush and that police decided to search the area based on Appellant’s statements after his illegal detention. The handgun should have been excluded. The court rejects the State’s argument that the handgun was admissible, as Appellant abandoned it prior to the illegal. Abandonment is not a per se rule to the fruit of the poisonous tree exclusionary rule. Here, the illegal stop did not cause Appellant to abandon the handgun. Instead, the illegal stop included questioning and incriminating statements that inspired police to search the area and find the abandoned handgun, so whether the handgun was abandoned before or after the unconstitutional seizure in this case is irrelevant to the question of whether the unconstitutional seizure led police to search for and find the handgun. The court of appeals ultimately concludes that the error in this case warrants reversal of Appellant’s conviction. State v. Corey Davis, Jr., No. A17-0545, 910 N.W.2d 50 (Minn. Ct. App. Apr. 2, 2018).

B. SEARCH WARRANT WITH INCORRECT NAME SUFFICIENTLY PARTICULAR IF IT INCLUDES CORRECT PERSON’S DESCRIPTION: While investigating a gang-related drive-by shooting, police drove to the residence of the alleged shooter, A.B., where they saw A.B. and another male, Appellant, standing in the driveway. When officers exited the squad car and identified themselves, A.B. and Appellant ran. They were identified by the victim as being present in the car that shot at him. Subsequent searches of the car and area in which A.B. and Appellant ran revealed a dark-colored sweatshirt, handgun and shell casings. Appellant was charged with drive-by shooting, second-degree assault with a dangerous weapon, ineligible possession of a firearm, drive-by shooting for the benefit of a gang, and second-degree assault for the benefit of a gang. Prior to trial, police obtained a warrant to obtain Appellant’s DNA to compare with DNA on the handgun. The warrant properly described Appellant’s location at the Ramsey County Law Enforcement Center and twice named Appellant correctly. However, in a later section, the warrant permitted law enforcement to search D.L.H., an uninvolved person. The DNA on the handgun excluded two-thirds of the population but did not exclude Appellant. The DNA evidence was presented at trial, as was the testimony of a witness who saw two men, one in a dark-colored sweatshirt, whispering suspiciously in the alley behind his house and then run away. A jury found Appellant guilty on all counts. On appeal, Appellant argues the warrant for his DNA failed to satisfy the Fourth Amendment’s particularity requirement, and that the district court should have suppressed the DNA evidence. With respect to the location identified in a search warrant, the test for sufficient particularity is “whether the description is sufficient so that the executing officer can locate and identify the premises with reasonable effort with no reasonable probability that [other premises] might be mistakenly searched.” State v. Schnorr, 346 N.W.2d 380, 382 (Minn. Ct. App. 1984). The court of appeals applies this same test to a warrant containing both incorrect and incorrect information as to the person to be searched. In this case, there was no risk that the executing officers would mistake whose DNA was to be obtained, as the majority of the warrant provided Appellant’s complete name, date of birth, and location. The court also finds the district court did not abuse its discretion in admitting evidence of a prior related gang shooting or expert testimony about gangs. Appellant’s convictions are affirmed. State v. Cicero Deshawn Taylor, No. A17-0491, 910 N.W.2d 60 (Minn. Ct. App. Apr. 2, 2018).

IV. FORFEITURE

A. VEHICLE FORFEITURE STATUTE UNCONSTITUTIONAL AS APPLIED WHERE REGISTERED OWNER DENIED JUDICIAL REVIEW FOR OVER 18 MONTHS: Respondent-driver was arrested for felony DWI and the vehicle she was driving, a 1999 Lexus, was seized for forfeiture. Her mother, Respondent-owner, is the vehicle’s registered owner. Respondents filed a demand for judicial determination of the forfeiture and a court trial was set. The trial was continued or rescheduled six times to await the outcome of the driver’s related implied consent and criminal matters. More than 18 months after the demand was initially filed, a hearing was held to address Respondents’ motion to dismiss for summary judgment, and Respondents’ motion was granted. On appeal, Appellant challenges the district court’s conclusion that Minn. Stat. § 169A.63, subd. 9(d), violates procedural due process by failing to provide for meaningful review after a prehearing vehicle seizure.
To satisfy procedural due process, where an individual is deprived of life, liberty, or a property interest, the government must provide an individual with notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Minn. Stat. § 169A.63, subd. 9(d), requires that a judicial determination of a vehicle forfeiture be held “no later than 180 days” after a demand is filed, but also that a hearing not be held until the related criminal proceeding is concluded. Respondents failed to prove § 169A.63, subd. 9(d), is facially invalid, because there are circumstances under which a related criminal matter may be resolved quickly and a hearing under § 169A.63, subd. 9(d), timely held.
However, as applied to the Respondents’ case, § 169A.63, subd. 9(d), is unconstitutional. As the vehicle’s registered owner, Respondent-owner had a continued property interest in the vehicle. Because the resolution of the forfeiture action was tied to Respondent-driver’s related criminal and implied consent matters, no hearing was held on the validity of the seizure of the vehicle for more than 18 months, which denied Respondents prompt review of the seizure. Various forms of “hardship relief” are provided in § 169A.63, subds. 4, 5a, and 7, but Respondents did not seek such relief. However, even if they had, the court of appeals finds it would not have remedied the statute’s failure to provide an initial hearing or administrative procedure for immediate judicial review. The district court’s grant of summary judgment is affirmed. Megan Ashley Olson, et al., v. One 1999 Lexus, No. A17-1083, 910 N.W.2d 72 (Minn. Ct. App. Apr. 2, 2018).

V. FIRST AMENDMENT

A. STALKING AND HARASSMENT STATUTES IMPLICATE FIRST AMENDMENT, BUT ARE NOT UNCONSTITUTIONALLY OVERBROAD: Appellant, a juvenile, was adjudicated delinquent on stalking and harassment charges, under Minn. Stat. §§ 609.749, subd. 2(6), and 609.795, subd. 1(3). Appellant posted a number of messages on Twitter taunting a fellow high school student, M.B., who was diagnosed with ADHD and autism, with some encouraging M.B. to commit suicide. M.B. testified the messages made him want to commit suicide and made him afraid he would be attacked at school. On appeal, Appellant argues the statues are unconstitutionally overbroad and that the evidence was insufficient to prove his guilt for felony stalking.
The court of appeals first confirms that the stalking and harassment statutes do implicate the First Amendment, because both criminalize conduct that typically involve some expressive activity, sending letters, telegrams, messages, or packages. However, the subdivisions of the statutes at issue here do not prohibit a substantial amount of protected speech, as they refer to specific and repeated conduct done with intent, knowledge, or reason to know that the conduct will elicit a particular response. Thus, §§ 609.749, subd. 2(6), and 609.795, subd. 1(3) are not facially overbroad. These sections are also not unconstitutionally overbroad as applied to Appellant’s specific conduct. First, the court determines that Appellant’s actions constitute expressive activity under the First Amendment, because his conduct of sending messages to M.B. is inextricably intertwined with the content of the messages. The court rejects Appellant’s argument that his conduct was comparable to posting an offensive message in a public forum. M.B. is not a public figure and, while tweets are generally public, tagging M.B. in Appellant’s tweets posted the message on M.B.’s “wall,” increasing the likelihood it would be seen by M.B. The court agrees with the State’s argument that Appellant’s tweets are unprotected speech integral to criminal conduct, which is not protected by the First Amendment. Thus, the statutes are not overbroad as applied to Appellant. Lastly, the court of appeals concludes the State was not required to prove at trial the constitutionality of the statutes, and that the evidence was sufficient to support finding of guilt for felony stalking. The district court is affirmed. Matter of Welfare of A.J.B., No. A17-1161, N.W.2d , 2018 WL 1701981 (Minn. Ct. App. Apr. 9, 2018)

VI. EXCESSIVE FINES CLAUSE

A. FINE STATUTE FOR THIRD-DEGREE CSC NOT FACIALLY UNCONSTITUTIONAL, BECAUSE IT DOES NOT ESTABLISH A MANDATORY MINIMUM FINE: As part of Appellant’s sentence for third-degree criminal sexual conduct, the district court imposed a $9,000 fine, under Minn. Stat. § 609.101, subd. 2. The court of appeals holds that § 609.101, subd. 2, is not facially unconstitutional under the Excessive Fines Clause and that it is not unconstitutional as applied to Appellant. When a defendant is convicted of certain crimes, including third-degree criminal sexual conduct, § 609.101, subd. 2, directs the district court to “impose a fine of not less than 30 percent of the maximum fine authorized by law nor more than the maximum fine authorized by law.” Subdivision 5 allows for the fine to be reduced or substituted with community work service if the defendant qualifies for a public defender. Because subdivision 5 allows for a reduction of the fine, subdivision 2 does not establish a mandatory minimum fine in violation of the Excessive Fines Clause, and is, therefore, not facially unconstitutional. Appellant argues the district court violated the Excessive Fines Clause in his case specifically by imposing a $9,000 fine when he qualified for and was represented by a public defender. The court of appeals finds a $9,000 fine is not grossly disproportionate to the gravity of Appellant’s offense of conviction. The fine also did not place an undue financial burden on Appellant. He insisted on work release at sentencing to allow him to keep his “good job,” and he was granted work release specifically to earn money to pay off the fine. Appellant was also given until 2027 to pay the fine in full. The fine is also not grossly disproportional to fines imposed for other sex crimes in and outside of Minnesota. The district court did not abuse its discretion. State v. Garnet Frances Madden, No. A17-0755, N.W.2d , 2018 WL 1702407 (Minn. Ct. App. Apr. 9, 2018).

VII. COMMISSIONER OF CORRECTIONS

A. REVIEW HEARINGS TO EXTEND INCARCERATION FOR CONDITIONAL RELEASE VIOLATIONS ARE LAWFUL: After violating his conditions of release during his lifetime conditional release term following his criminal sexual conduct convictions, the Department of Corrections’ (DOC) Hearings and Release Unit (HRU) ordered Appellant back to prison. Appellant’s term of incarceration was thereafter extended a number of times for various reasons following HRU administrative review hearings. Eventually, Appellant petitioned the district court for a writ of habeas corpus, but his petition was denied. On appeal, Appellant argues the DOC’s use of review hearings to extend incarceration is not authorized under the conditional release statutes or the DOC’s administrative rules. The Court of Appeals notes that the relevant administrative rules give the commissioner great discretion in determining when to release an offender following their re-incarceration for violating conditional release. The HRU’s use of review hearings gives an offender notice and an opportunity to be heard regarding his projected release date or continued incarceration. So, while the relevant statutes and administrative rules do not expressly authorize review hearings in this context, such hearings are consistent with those statutes and rules. State ex rel. Steven Leino v. Tom Roy, Comm’r of Corrections, No. A17-1278, N.W.2d , 2018 WL 1701919 (Minn. Ct. App. Apr. 9, 2018).

VIII. CONFRONTATION CLAUSE

A. NO CONFRONTATION CLAUSE VIOLATION TO ADMIT TRANSLATED STATEMENT WITHOUT TESTIMONY OF TRANSLATOR: Appellant agreed to give a recorded statement to police during a criminal sexual conduct investigation. Appellant, an immigrant from Guatemala, does not speak English fluently, and his first and second languages are Mam and Spanish. A Spanish translator was used via telephone to translate the officer’s questions and Appellant’s answers. During the interrogation, Appellant admitted to having sexual intercourse with a child under 13. Appellant was charged with charged with first-degree criminal sexual conduct. Prior to trial, he objected to the recording of his translated statement on Confrontation Clause and hearsay grounds because the interpreter was not present to testify. The district court admitted the video recording of and the officer’s testimony regarding the statement at trial, and Appellant was convicted. As to both of Appellant’s arguments, the Court of Appeals identifies the threshold issue as the identity of the declarant, specifically, whether the interpreter is the declarant, but notes that, when an interpreter is involved, the identity of the declarant is not always obvious. The question of whether an interpreter translating a speaker’s statement into English is an issue of first impression in Minnesota. The Court of Appeals finds that the district court did not err in applying Ninth Circuit’s four-factor test for determining whether an interpreter’s statements should be attributed to the defendant: (1) which party supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort, (3) the interpreter’s qualifications and language skill, and (4) whether actions taken subsequent to the conversation were consistent with the statement as translated. United States v. Nazemian, 948 F.2d , 528 (9th Cir. ). Under Minn. R. Evid. 104, the district court may examine various circumstances to decide whether a preliminary fact has been established by a preponderance of the evidence, that is, whether the interpreter is a declarant for the purposes of a Confrontation Clause or hearsay issue. The court holds that “when the state seeks to admit into evidence a criminal defendant’s admissions made through an interpreter, upon a Confrontation Clause or hearsay objection a district court must determine as a preliminary matter whether the interpreter’s translation can fairly be attributable to the defendant, or whether the interpreter is a separate declarant,” and that the state carries the burden to establish the preliminary fact by a preponderance of the evidence. The court directs the district court to consider, among others, the four Nazemian factors.
In this case, after examining the Nazemian factors, the court finds that Appellant was the sole declarant, so no Confrontation Clause violation occurred when the translator did not testify at Appellant’s trial. Also, because the statements at issue were Appellant’s own and were offered against him by the State, they were admissible under Minn. R. Evid. 801(d)(2)(A). The district court is affirmed. State v. Cesar Rosario Lopez-Ramos, No. A17-0609, N.W.2d , 2018 WL 1788057 (Minn. Ct. App. Apr. 16, 2018).