April 2019

I. ROBBERY

A. JURY NEED NOT AGREE WHICH ALTERNATIVE MEANS WAS USED TO COMMIT FIRST-DEGREE AGGRAVATED ROBBERY: Appellant was convicted of first-degree aggravated robbery after a jury trial. The evidence at trial showed Appellant hit the victim in the head with a baseball bat before taking a pocket knife from the victim. The district court instructed the jury they could find Appellant guilty of first-degree aggravated robbery either because he was armed with a dangerous weapon or because he inflicted bodily harm upon the victim while committing a robbery. Appellant argues the jury should have unanimously decided whether he was armed with a dangerous weapon or inflicted bodily harm upon the victim.

Jury verdicts in criminal cases must be unanimous. However, “the jury need not always unanimously decide which of several possible means [a] defendant used to commit [an] offense in order to conclude that an element has been proved beyond a reasonable doubt.” State v. Ihle, 640 N.W.2d 910, 918 (Minn. 2002). Minn. Stat. § 609.245, subd. 1, provides that “whoever, while committing a robbery, is armed with a dangerous weapon…, or inflicts bodily harm upon another, is guilty of aggravated robbery in the first degree…” The issue here is whether this statute, specifically the phrase “is armed with a dangerous weapon…, or inflicts bodily harm upon another,” defines separate elements of the offense and, therefore, separate crimes of first-degree aggravated robbery, or defines alternative means of committing first-degree aggravated robbery.

The Court of Appeals finds the plain language of the statute manifests a legislative intent to establish one crime that can be committed in alternative ways. The aggravated robbery statute clearly states what the offense is, and, before that, in one sentence, lists the acts or alternative circumstances that result in the commission of the crime. Thus, the court holds that the jury was not required to specifically or unanimously agree which of the alternative means of committing first-degree aggravated robbery was employed by Appellant, and the district court’s instructions were proper.

Next, the court considers whether the legislature’s articulation of alternative means of committing first-degree aggravated robbery violates due process. The court finds that the alternative means are not distinct, dissimilar, or inherently separate. The court also notes that the breadth of possible conduct embodied in the first-degree aggravated robbery statute is narrow and includes behaviors that have similar degrees of seriousness. The court ultimately concludes that the alternatives in the first-degree aggravated robbery statute are consistent with fundamental fairness. Appellant’s conviction is affirmed. State v. Lagred, 923 N.W.2d 345 (Minn. Ct. App. Feb. 11, 2019).

B. “CARRYING AWAY” IS ACT OF MOVING PERSONAL PROPERTY FROM LOCATION OF “TAKING”: A wine shop employee observed Appellant and another woman put bottles of liquor in their handbags. The employee and Appellant struggled and one bottle fell out of her handbag, breaking on the floor. The struggle continued outside the store. The employee was able to remove the remaining bottles of wine from Appellant’s handbag, after which Appellant ran away. Appellant was found guilty of simple robbery and she challenges the sufficiency of the evidence to sustain her conviction.

Minn. Stat. § 609.24 states: “Whoever…takes 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 is guilty of robbery…” Appellant argues she did not overcome the employee’s resistance or compel his acquiescence in the carrying away, because the employee took the wine and Appellant left emptyhanded.

The Court of Appeals notes that simple robbery requires only that use of force or threats precede or accompany either the taking or the carrying away, which means the “taking” and the “carrying away” are separate acts. “Carrying away” is not defined in Minn. Stat. § 609.24, but the court deciphers its plain and ordinary meaning from dictionary definitions, concluding that “carrying away” is the act of moving personal property from the location of the taking. The record in this case shows Appellant’s threats and attempt to bite the store employee during the struggle overcame his resistance, allowing Appellant to carry some of the wine outside of the store, which was the location of the taking. Thus, the evidence was sufficient to sustain Appellant’s conviction. State v. Townsend, 925 N.W.2d 280 (Minn. Ct. App. Mar. 11, 2019).

II. MANSLAUGHTER

A. MANSLAUGHTER PREDICATED ON FIFTH-DEGREE ASSAULT DOES NOT REQUIRE PROOF THAT DEATH OR GREAT BODILY HARM BE REASONABLY FORSEEABLE: Appellant was convicted of first-degree manslaughter predicated on an underlying fifth-degree assault after he was involved in an altercation outside of a bar. Appellant was aggressive toward a friend of the victim, after which the victim came out of the bar and began poking, pushing, and yelling at Appellant. Appellant then punched the victim once in the face, and the victim fell to the ground in an unresponsive state with agonal breathing. The victim died later at the hospital, due to a combination of blunt force head trauma and the victim’s elevated blood alcohol concentration. At trial, the district court denied Appellant’s request that the court instruct the jury that first-degree manslaughter predicated on a fifth-degree assault requires that death or great bodily harm be reasonably foreseeable.

Minn. Stat. § 609.20(2) identifies two ways that first-degree manslaughter may be committed. The statute says a person commits first-degree manslaughter if that person “violates section 609.224 [fifth-degree assault] and causes the death of another or causes the death of another in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force and violence that death of or great bodily harm to any person was reasonably foreseeable…” The issue here is whether the “reasonably foreseeable” modifier (italicized above) applies to both the fifth-degree assault clause and the misdemeanor offense clause, or only the latter.

The Court of Appeals finds the last antecedent or nearest reasonable referent rules the best rules to apply to avoid rendering part of the statute superfluous. In applying those rules, the court holds the “reasonably foreseeable” qualifier applies only to the misdemeanor offense clause. As such, the district court properly instructed the jury in this case. State v. Stay, 923 N.W.2d 355 (Minn. Ct. App. Feb. 11, 2019)

III. CRIMINAL PROCEDURE

A. NO ABSOLUTE RIGHT TO WITHDRAW VALID GUILTY PLEA AFTER “PUT FORMALLY BEFORE THE COURT”:**** At his plea hearing, Appellant pleaded guilty to violating an OFP. The district court deferred accepting his plea until sentencing. At the sentencing hearing, Appellant sought to withdraw his guilty plea because, as his attorney informed the court, “[his attorney] threatened him to do so.” However, because Appellant denied on the record at his plea hearing that anyone made any threats to him, his friends, or his family to coerce him into accepting the plea agreement, the district court denied Appellant’s motion. Later in the sentencing hearing, Appellant explained he did not feel threatened by his attorney and agreed with the district court’s characterization that “he felt coerced by the situation because [he was] facing some bad consequences.” The district court then formally accepted Appellant’s guilty plea and sentenced Appellant.

Under the Minnesota Rules of Criminal Procedure, a district court may allow a defendant to withdraw a plea prior to sentencing if it would be fair and just to do so. Additionally, a defendant must be allowed to withdraw a plea at any time to correct a manifest injustice. Appellant argues neither plea withdrawal standard should apply, as his withdrawal request was made before the court accepted his plea. He argues that, when he made his request, he had an absolute right to withdraw his plea.

In State v. Tuttle, 504 N.W.2d 252 (Minn. Ct. App. 1993), the Court of Appeals stated that Rule 15.04, subd. 3(1) “gives the district court authority to reserve acceptance of a plea pending a PSI; it does not give a defendant an absolute right to withdraw a plea pending acceptance by the court.” Id. at 257. The question still remains, however, whether an absolute right to withdraw a guilty plea prior to its acceptance exists outside the rules of criminal procedure.

The Court of Appeals holds that such a right does not exist. The court rejects Appellant’s argument that this absolute right can be inferred from a defendant’s trial rights, including the presumption of innocence, and the idea that those rights are not waived until a valid guilty plea is accepted. The Supreme Court has previously held that “[o]nce a guilty plea is entered, there is no absolute right to withdraw it.” Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). The Court of Appeals holds that a guilty plea is entered once it has been “put formally before the court.” At that point, a defendant has no absolute right to withdraw it. In this case, Appellant’s guilty plea was put formally before the district court at Appellant’s plea hearing. Thus, he had no absolute right to withdraw it at his sentencing hearing prior to the district court’s acceptance of his plea. The Court of Appeals also finds that district court did not err in denying Appellant’s request to withdraw his plea under the fair and just standard. Appellant argued he should have been permitted to withdraw his plea under this standard because the OFP was not in effect when he was accused of violating it. An ex parte OFP was issued on December 8, 2016, and Appellant was served on December 9, 2016. Appellant requested a hearing on December 12, 2016, and one was scheduled for December 16, 2016. The hearing was rescheduled by the court due to the victim’s pregnancy and health to January 5, 2017. Appellant was accused of violating the OFP on December 21, 2016. The court rejects Appellant’s argument that, because the OFP expired the moment the district court continued the hearing and rescheduled it outside of the 10-day statutory time frame. The court concludes that the statutory language makes clear that an ex parte OFP expires once the time frame runs without a hearing. Here, Appellant violated the OFP within 10 days of his request for a hearing. At that time, the OFP was undoubtedly still in effect. State v. Nicholas, 924 N.W.2d 286 (Minn. Ct. App. Feb. 11, 2019).

B. GUILTY PLEA ENTERED IN CONSIDERATION OF UNLAWFUL SENTENCE IS COERCED: Appellant was charged with a second-degree controlled substance offense and the State notified him of its intent to seek an aggravated sentence based on Appellant’s status as a career offender and a dangerous offender. Appellant subsequently entered a guilty plea under a plea agreement that provided for a 100-month sentence. If the district court found Appellant to be a career or dangerous offender, it could have sentenced Appellant to the 25-year statutory maximum. However, Appellant qualified as neither a dangerous nor career offender. The State’s threat to have Appellant sentenced as such induced Appellant’s guilty plea. The Court of Appeals concludes that the State’s threat of an aggravated sentence that was unauthorized by law coerced Appellant’s plea. Because a coerced plea is involuntary, Appellant’s plea was invalid. Johnson v. State, 925 N.W.2d 287 (Minn. Ct. App. Mar. 11, 2019).

C. MINN. STAT. § 611.21 DOES NOT AUTHORIZE PAYMENT FOR INTERPRETER FOR PUBLIC DEFENDER’S OUT-OF-COURT COMMUNICATIONS WITH CLIENT: Appellant does not speak English and was represented by a public defender. He filed an ex parte application under Minn. Stat. § 611.21 for $2,000 for interpreter services to facilitate attorney-client communication outside of court, because the public defender’s office had no funds available to provide the services. The district court denied the application, finding that Minn. Stat. § 611.33, subd. 3, requires the state Board of Public Defense to pay for out-of-court interpreter services.

Minn. Stat. § 611.21(a) allows an indigent defendant’s appointed counsel to file “an ex parte application requesting investigative, expert, or other services necessary to an adequate defense in the case.” Interpreter services are necessary to assist a non-English speaking defendant during legal proceedings, and, under Minn. Stat. § 611.33, subd. 3, the district court is responsible for paying fees and expenses for a qualified interpreter for court proceedings. However, section 611.33, subd. 3, also unambiguously imposes the burden of paying for interpreter services for out-of-court communications between a criminal defendant and the public defender on the Board of Public Defense. Based on the plain language of sections 611.21(a) and 611.33, subdivision 3, the Court of Appeals rejects Appellant’s argument that an application may still be made under section 611.21(a) if the Board of Public Defense no longer has funds available to pay for these services. The district court is affirmed. State v. Cruz Montanez, No. A19-0179, 2019 WL 1510873 (Minn. Ct. App. Apr. 8, 2019).

IV. SENTENCING

A. OUT-OF-STATE PROBATIONARY SENTENCE RESERVING RIGHT TO REVOKE PROBATION AND IMPOSE PRISON SENTENCE IS EQUIVALENT TO STAY OF IMPOSITION: Appellant argues the district court erred in denying his motion to correct his sentence for aiding and abetting second-degree unintentional murder based on an incorrect criminal history score. The district court assigned one-half of a point for Appellant’s prior Illinois conviction for possessing 1.7 grams of cocaine. The Court of Appeals holds that the district court did not abuse its discretion. Under the sentencing guidelines, a prior out-of-state felony conviction can be used in calculating a criminal history score, and an out-of-state conviction is considered a felony if the offense would be defined as a felony in Minnesota and the defendant received a felony level sentence, including the equivalent of a stay of imposition.

Here, the Illinois offense would be a felony under Minnesota law and the Court of Appeals agrees with the district court’s conclusion that the sentence Appellant received in Illinois, 24 months of probation, is functionally equivalent to a stay of imposition. The Illinois sentencing order states that “failure to follow the conditions of this sentence or probation could result in a new sentence up to the maximum penalty for the offense which is before this Court,” which is consistent with the Court of Appeals’ description of the characteristics of a stay of imposition in State v. C.P.H., 707 N.W.2d 699, 702 (Minn. Ct. App. 2006): “By staying the imposition of the sentence, the district court reserves the right, in the event the defendant does not meet certain conditions, to vacate the stay and impose a sentence.” The district court is affirmed. State v. Watson, No. A18-1187, 2019 WL 1233383 (Minn. Ct. App. Mar. 18, 2019).

V. FORFEITURE

A. DUE PROCESS REQUIRES PROMPT HEARING ON INNOCENT OWNER DEFENSE: The driver of a 1999 Lexus was arrested for first-degree DWI and the vehicle, owned solely by the driver’s mother, was seized. Both the driver and her mother challenged the forfeiture of the vehicle, arguing the DWI vehicle forfeiture statute was unconstitutional for violating their due process rights. The driver’s mother also asserted the innocent-owner defense. The district court agreed that the statute violated both the driver and the owner’s due process rights. The Court of Appeals found Minn. Stat. § 169A.63, subd. 9(d), constitutional on its face but unconstitutional as applied to both the vehicle driver and owner. The Supreme Court ultimately agrees with the Court of Appeals that the statute is constitutional on its face, but finds it constitutional as applied to the driver and unconstitutional only as applied to the owner.

In its analysis, the Supreme Court first affirms that the framework outlined in Mathews v. Eldridge, 424 U.S. 319 (1976), applies to determine whether the delay in this case, driven by the DWI forfeiture statute’s mandate that no judicial hearing on the demand for judicial determination occur until after the related criminal proceedings are concluded (“the central question in [the] case”), violated due process.

The Supreme Court concludes that section 169A.53, subdivision 9(d), is facially constitutional, “[b]ecause we can conceive of a circumstance where the legitimacy of the forfeiture (and the demand for judicial determination) can be resolved in a constitutionally prompt manner following the swift resolution of the underlying criminal proceedings…” The court then considers the driver’s and owner’s as-applied challenges to the DWI forfeiture statute, addressing each of the three factors laid out in Mathews. As to the driver, the court finds the statute constitutional as applied. That is, the court determines the driver’s right to due process was not violated by the 18-month delay before her demand for judicial determination was heard, because the driver does not own the vehicle and has a limited private interest in keeping the vehicle. The State, on the other hand, has a significant fiscal, functional, and administrative interest in protecting the public and not conducting pre-seizure hearings, and the pre-seizure process for determining whether forfeiture is authorized is reliable. However, the court’s balancing of the Mathews factors as to the owner lead the court to hold that due process requires a prompt hearing for the vehicle owner. Even though she cannot drive the vehicle because her license was cancelled, she still has a significant financial interest in the vehicle She also was not driving the vehicle and had an innocent owner claim, which received no pre-seizure consideration. The scope of a hearing would be limited to considering her innocent owner defense, and this would not pose a substantial burden on courts and prosecutors. Thus, the 18-month delay between the seizure of her property and the hearing on her demand for judicial determination violated her right to procedural due process. To remedy this violation, the court orders that the defendant vehicle be returned to its owner. Olson v. One 1999 Lexus, 924 N.W.2d 594 (Minn. Mar. 13, 2019).

VI. PHYSICIAN-PATIENT PRIVILEGE

A. BLOOD SAMPLE DRAWN DURING MEDICAL EMERGENCY NOT “INFORMATION” COVERED BY PHYSICIAN-PATIENT PRIVILEGE: Law enforcement found Appellant bleeding from his head, lying in the street following an ATV accident, and smelled alcohol on his breath before he was taken to the hospital. A deputy learned the hospital took a sample of Appellant’s blood prior to giving a blood transfusion. The deputy obtained a search warrant to seize the blood sample for testing, which later revealed Appellant’s blood alcohol concentration was 0.155. Prior to his trial for fourth-degree DWI, the district court granted Appellant’s motion to suppress the blood sample as “information” subject to the physician-patient privilege. The Court of Appeals reversed, and the Supreme Court affirms, finding that a blood sample is not “information” within the scope of the physician-patient privilege.

The Supreme Court first clarifies that its statements regarding “information” as used in the physician-patient privilege statute in State v. Staat, 192 N.W.2d 192 (Minn. 1971), and State v. Heaney, 689 N.W.2d 168 (Minn. 2004), which Appellant argues supports his position that a blood sample is “information,” were merely dicta. Thus, the court examines the question of whether a blood sample is “information” as an issue of first impression. Based on the plain and common meaning of the word “information,” and keeping in mind the court’s observation that “[t]here probably is no privilege… so abused as the physician[-]patient privilege” and the need to ensure it does not “become [a] vehicle[ ] for the suppression of evidence which is not privileged,” the court concludes that a blood sample is not “information.” Quoting the dictionary definition of “information” published the same year the New York statute upon which Minnesota’s physician-patient privilege statute is based, the court explains that “[a] blood sample [itself] is not ‘intelligence; notice, news, or advice communicated by word or writing.’” The statute covers information itself, not objects that contain or carry information. State v. Atwood, No. A17-1463, 2019 WL 1142420 (Minn. Mar. 13, 2019).

VII. BURGLARY

A. VICTIM MUST HAVE BEEN PRESENT FOR FIRST-DEGREE BURGLARY BASED ON DEFENDANT’S POSSESSION OF ARTICLE VICTIM BELIEVED WAS DANGEROUS WEAPON: While J.T. was away, Appellant burglarized J.T.’s home. A neighbor observed the burglary and notified police. When police arrived, they approached Appellant in an alley behind the house and saw Appellant drop what they believed was a gun. After arresting Appellant, police discovered the item was a BB gun. After a court trial, Appellant was convicted of first-degree and second-degree burglary. Appellant appealed his first-degree burglary conviction under Minn. Stat. § 609.582, subd. 1(b), which elevates burglary to a first-degree offense if “the burglar possesses, when entering or at any time while in the building,… any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon.” Appellant argues the statute requires the victim be physically present and reasonably believe the item is a dangerous weapon. The Court of Appeals affirmed his conviction, concluding the statute’s plain language requires only “that the article’s appearance supports an objective belief that it is a dangerous weapon.”

The Supreme Court agrees with Appellant’s argument that the plain language of Minn. Stat. § 609.582, subd. 1(b), requires the victim to be present, noting that the statute “requires the item be ‘fashioned in a manner to lead the victim,’ not a victim, to reasonably believe the item is a dangerous weapon.” By requiring a specific person, “the victim,” to have the reasonable belief, the statute requires that person to be present. Because the victim in this case was not physically present during the burglary, the evidence is insufficient to support Appellant’s conviction for first-degree burglary. State v. Rogers, 925 N.W.2d 1 (Minn. Mar. 20, 2019).

VIII. IMPLIED CONSENT

A. DRIVER MUST SHOW BURPING, BELCHING, OR VOMITING DURING OBSERVATION PERIOD ACTUALLY AFFECTED TEST RESULTS: Appellant’s driver’s license was revoked based on a breath test, administered after his arrest for DWI, which reported an alcohol concentration of 0.09. At the implied consent hearing, Appellant did not object to the admissibility of the breath test results, but later argued he impeached the credibility of the results by testifying that he burped during the pre-test observation period. The district court sustained the revocation, finding that Appellant burped during the observation period, but that he failed to show that it affected the test results.

The only issue is whether Appellant impeached the test results, because he did not object to their admissibility at the hearing. To impeach the test results, the Court of Appeals notes that case law makes clear that Appellant was required to prove both that he burped during the observation period and that the burping actually affected the test results. Appellant failed to present any evidence as to the effect his burping had on the test results. The district court is affirmed. Junker v. Comm’r Pub. Safety, No. A18-0372, 2019 WL 1320566 (Minn. Ct. App. Mar. 25, 2019).

B. DEPUTY HAS NO DUTY TO NOTIFY DRIVER THAT FIELD SOBRIETY AND PRELIMINARY BREATH TESTS ARE OPTIONAL: Appellant was arrested for DWI after failing field sobriety tests and a PBT revealed his blood alcohol concentration was 0.096. A subsequent breath test reported a blood alcohol concentration of 0.09, and Appellant’s driver’s license was revoked. Appellant argues the deputy had an obligation to inform him he could refuse all field sobriety tests and that the deputy’s failure to do so violated his right to procedural due process. The district court and Court of Appeals disagree. No statutory provision or case requires law enforcement to inform a driver that they may refuse field sobriety testing or a preliminary breath test. Such tests are also not considered searches or custodial interrogations, so there are no constitutional obligations to support Appellant’s argument. Appellant’s license revocation is affirmed. Otto v. Comm’r Pub. Safety, 924 N.W.2d 658 (Minn. Ct. App. Mar. 25, 2019).

IX. ENTRAPMENT DEFENSE

A. DEFENDANT NEED ONLY SHOW INDUCEMENT BY STATE, NOT THAT STATE’S CONDUCT ACTUALLY INDUCED HIM: An acquaintance introduced H.F. to Appellant, and they ran into each other at a party a year later. Appellant saw H.F. with Walker, who H.F. described as her drug source. A couple of months later, H.F. contacted Appellant through social media, asking him to help her obtain drugs from Walker, because her boyfriend would beat her out of jealousy if she contacted Walker herself. Appellant refused and H.F. offered him $500 to help. Appellant again refused. H.F. contacted Appellant multiple times in the following weeks, but he did not answer her calls. Eventually, he answered one of the calls. H.F. asked if Walker would be at a party Appellant planned to attend and asked Appellant to hand his phone to Walker so H.F. could buy drugs from Walker. Appellant agreed to let Walker use his phone at the party. At the party, Walker used Appellant’s phone to arrange a drug exchange with H.F. Walker told Appellant to go to the meeting location to look for H.F. Appellant ended up walking a bag of methamphetamine from Walker’s car to H.F. in her car and walking cash from H.F. to Walker in his car. He did not use any of the drugs or take any of the money. H.F. had been working the entire time as an informant making controlled drug purchases. After being charged with first-degree sale of a controlled substance, Appellant raised an entrapment defense. However, the district court rejected the defense, finding Appellant failed to show that the government induced him to participate in the transaction. After a stipulated facts trial, the district court found Appellant guilty.

To initiate the entrapment defense procedures, the defendant notifies the prosecutor of the facts supporting the defense and whether he chooses the jury or court to decide the issue of entrapment. If he elects to have the court decide the issue, a hearing is held and the court addresses (1) whether the defendant has first shown by a preponderance of the evidence that the government induced him to commit the crime, and (2) whether the State can then prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.

The Court of Appeals concludes that the district court “conflated the two elemental steps of the entrapment analysis into one, loading Garcia with an expanded burden of proof.” The defendant has the burden of showing inducement, not that the inducement was his motivating force. The first step focuses on the state’s actions, while the second step focuses on the defendant’s predisposal to commit the offense. The court clarifies that the defendant’s burden is to prove not that the government’s conduct actually induced him but to make a showing from the evidence that the state’s conduct demonstrated inducement.

The record shows Appellant did meet his burden of production. However, the district court never reached the second step in the entrapment defense analysis, and the State must be afforded the opportunity to prove beyond a reasonable doubt that Appellant was predisposed to commit the crime. Reversed and remanded. State v. Juan Neil Garcia, No. A18-0343, 2019 WL 1757995 (Minn. Ct. App. Apr. 22, 2019).

X. CONDITIONAL RELEASE

A. PHASE II OF CHALLENGE INCARCERATION PROGRAM IS “RELEASE FROM PRISON”: Appellant 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, which allowed him to reside at home. He entered phase III in January 2009, but was returned to phase II in April 2009 for failing to remain sober. A few months later, he was returned to custody for again failing to remain sober. He was released in December 2010 and remained on supervised release until he was taken into custody again in March 2014 for failing to satisfy treatment requirements. He was released again in May 2014.

Appellant he argues entering phase II triggered the start of his conditional release term, which would have then expired in July 2013. Therefore, when the State revoked his conditional release in March 2014, his conditional release term had already expired, and his subsequent incarceration was unlawful. The Court of Appeals found that both Appellant’s conditional and supervised release terms began at the same time, on December 2010.

The Supreme Court reverses the Court of Appeals, concluding that Appellant’s conditional release term began when he entered phase II of the Challenge Incarceration Program. The court notes that “[f]unctionally, conditional release is identical to supervised release.” However, while supervised release occurs with most felony sentences, an additional conditional release period is imposed for a certain classes of offenders. For first-degree DWIs, Minn. Stat. § 169A.276, subd. 1(d), provides that after the offender “has been released from prison the commissioner [of corrections] shall place the person on conditional release for five years.” The plain meaning of “release” was recently defined by the court as “to set free from confinement or bondage.” State ex rel. Duncan v. Roy, 887 N.W.2d 271, 277 (Minn. 2016). For both supervised and conditional release, the “release” begins when the offender is “set free from confinement.”

Under the Challenge Incarceration Program, confinement is required for phase I, but not phase II. In phase II, participants are subject to intense supervision and surveillance and house arrest conditions, but they live in the community and are not confined in a Minnesota Correctional Facility. Thus, the conditional release imposed under Minn. Stat. § 169A.276, subd. 1(d), begins when a Challenge Incarceration Program participant enters phase II and begins living in the community. Heilman v. Courtney, No. A17-0863, 2019 WL 1781483 (Minn. Apr. 24, 2019).

XI. CONFRONTATION CLAUSE

A. DIRECT OR CIRCUMSTANTIAL EVIDENCE MAY BE USED TO PROVE DEFENDANT CAUSED UNAVAILABILITY OF WITNESS: Appellant was convicted of violating a domestic abuse no contact order (DANCO). During trial, jail recorded phone calls between Appellant and the victim, the contact that violated the DANCO, were played for the jury. However, the victim did not appear pursuant to the State’s subpoena. The State had jail recorded phone calls by Appellant during which he was looking for someone to seek out the victim and make sure she did not appear in court. The district court allowed the detective to testify that, during an interview with the victim, the victim confirmed she was the female voice in the recorded calls played for the jury. Appellant testified that he was the male voice in the recordings, but that the female voice was not the victim. The jury found Appellant guilty of four counts of violating the DANCO.

The Court of Appeals holds the district court did not err in applying the forfeiture by wrongdoing exception to permit the victim’s out of court’s statements to be admitted as substantive evidence, because Appellant procured the victim’s unavailability. Appellant does not challenge that the victim was unavailable, that he engaged in wrongful conduct, or that he intended to procure the victim’s unavailability for trial, but argues he or his family members did not cause the victim to be unavailable, because the State did not present evidence as to why exactly the victim did not appear.

In concluding that Appellant’s wrongful conduct actually caused the victim’s failure to appear, the district court relied on circumstantial evidence: the victim met with the detective on the first day of trial, she called Appellant’s attorney to say she would testify the next day, and then she failed to appear after Appellant sent his family to tell her not to come. In Minnesota, direct and circumstantial evidence carry the same weight. Thus, the court holds that a district court “may draw reasonable inferences from circumstantial evidence in determining whether a defendant’s wrongdoing procured the unavailability of a witness.” Here, the record supports the inferences drawn by the district court from the circumstantial evidence. The district court did not violate Appellant’s constitutional rights in admitting the victim’s statements to the detective. State v. Shaka, No. A18-0778, 2019 WL 1890550 (Minn. Ct. App. Apr. 29, 2019).