August 2019


A. REQUEST TO WAIVE FILING FEE IS GOVERNED BY EXPUNGEMENT STATUTE: Appellant petitioned to expunge records relating to a prior conviction and requested a waiver of court fees and costs. His request was denied, and the question on appeal is whether the expungement statute or the in forma pauperis statute governs the fee waiver request. The expungement statute, Minn. Stat. § 609A.03, permits waiver of the expungement filing fee in cases of indigency and mandates waiver in cases in which proceedings were resolved in favor of the petitioner. Appellant, however, sought waiver under section 563.01, which governs authorization of in forma pauperis status in civil cases.

The Court of Appeals holds that the fee waiver provisions in section 609A.03 apply to requests to waive the expungement filing fee. However, because section 609A.03 does not provide a standard for determining whether an individual is financially eligible for fee waiver as section 563.01 does, the court “assume[s] without deciding that an expungement action under chapter 609A is a ‘civil action’ within the meaning of section 563.01, and that the standards for determining financial eligibility for fee waiver under section 563.01 may be used to determine whether a petitioner is indigent within the meaning of section 609A.” While Appellant qualifies for section 563.01’s fee waiver, a finding of indigency does not mandate a waiver under section 609A.03. In cases of indigency, under section 609A.03, fee waiver is discretionary.

While these provisions both arguably apply yet seem to conflict, the Court holds that section 609A.03 applies, as it is more specific than section 563.01’s general fee waiver provision. The Court also holds that it is not error for the district court to rely on the financial standards in section 563.01 to determine whether an expungement petitioner is indigent, but the district court must base its ultimate waiver determination on the standards set forth in section 609A.03. State v. Scheffler, 932 N.W.2d 57 (Minn. Ct. App. July 8, 2019).


A. RIGHT TO COUNSEL PRIOR TO BAC TEST DOES NOT APPLY WHEN ASKED TO SUBMIT TO A BLOOD TEST PURSUANT TO A WARRANT: Appellant was arrested for DWI and the police obtained a search warrant for a sample of Appellant’s blood. Appellant was presented with the search warrant and read the implied consent advisory which stated that “refusal to submit to a blood or urine test is a crime.” Appellant allowed her blood to be drawn, which later revealed a BAC over the legal limit. When she was charged with fourth-degree DWI, Appellant moved to suppress the blood test results based on an alleged violation of her limited constitutional right to counsel before submitting to the test. The district court suppressed the test results. On the State’s appeal, the Court of Appeals reversed.

The Supreme Court addresses whether a driver arrested for DWI, read an implied consent advisory, and presented with a search warrant authorizing the search of her blood has the right to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing. The Court recognizes that limited right to counsel was established in Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn. 1991), specifically, when the implied consent advisory is read and a suspected impaired driver is faced with deciding whether to submit to implied consent testing, the driver has a right to counsel to assist in making that decision. Friedman was decided when the implied consent law used the same procedure for blood, breath, and urine tests. Since then, the law has changed to require blood and urine tests be conducted only pursuant to a warrant or an exception to the warrant requirement. The implied consent advisory for blood and urine tests was also changed to inform drivers only that refusal to submit to a blood or urine test is a crime, unlike the breath tests advisory which continues to require that drivers be informed of the limited right to counsel established in Friedman.

As in Friedman, Appellant had the choice to refuse testing or submit to testing. However, the presence of a search warrant fundamentally changes the encounter here, as the decision whether to comply with a warrant is not a “unique decision” – every person who is the subject of a search warrant has the choice of either complying or being subjected to criminal penalties. The Court has never held that a right to counsel applies before a search warrant may be executed. The existence of a search warrant also protects against many of the concerns noted in Friedman – it protects unwarranted intrusions by the State and protects against unchecked legal power of the State by requiring the involvement of a neutral and detached magistrate. Finally, because the penalties for a DWI conviction and a test refusal conviction are “similar,” there is less need for counsel to explain “the alternative choices” and “legal ramifications.” The Court of Appeals is affirmed. State v. Rosenbush, 931 N.W.2d 91 (Minn. July 10, 2019).


A. RESTITUTION MAY BE ORDERED ONLY FOR LOSSES DIRECTLY CAUSE BY DEFENDANT’S CRIME: Appellant was charged with second-degree burglary and first-degree arson after a cabin was burglarized and destroyed in a fire. The cabin owner’s generator was found in Appellant’s truck, which was pictured by a trail camera at the scene. A jury found Appellant guilty of burglary. The district court found the arson was factually related to the burglary and ordered Appellant to pay restitution for the destroyed cabin, and the Court of Appeals affirmed.

The district court considered whether the loss of the cabin shared a “factual relationship” to the burglary offense. Instead of considering whether the fire damage was “directly caused” by Appellant’s burglary conduct, it considered whether the arson was “related to” the burglary.

Several statutes allow the district court to order restitution for losses that result from a crime (Minn. Stat. §§ 611A.01(b), .04, subd. 1(a), .045, subds. 1(a)(1), 3(a)). Cases interpreting these statutes established the general rule “that a district court may order restitution only for losses that are directly caused by, or follow naturally as a consequence of, the defendant’s crime.” Neither the district court nor the Court of Appeals applied that standard in this case. The case is remanded to the Court of Appeals for application of the proper standard, that is, the direct-causation standard. State v. Boettcher, 931 N.W.2d 376 (Minn. July 17, 2019).


A. THIRD-DEGREE MURDER: STATE NOT REQUIRED TO PROVE DEFENDANT LACKED AN “INTENT TO EFFECT THE DEATH OF ANY PERSON”: Respondent was charged with third-degree murder, criminal vehicular homicide, and criminal vehicular operation after she crashed her vehicle into a city maintenance vehicle, killing one occupant and seriously injuring the other. After a stipulated facts trial, the district court found Respondent guilty of all counts, finding Respondent’s conduct was a suicide attempt, but that there was no evidence she intended to kill anyone else. On appeal, Respondent argued the district court erred in finding she had not established a mental illness defense and that the State did not prove she acted “without intent to effect the death of any person.” The Court of Appeals reversed Respondent’s conviction because the State failed to prove Respondent acted “without intent to effect the death of any person,” which it determined is an element of third-degree murder.

Minn. Stat. § 609.195(a) (2018) provides that “[w]hoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree…”

The Supreme Court first discusses two lines of precedent: the State v. Stokely, 16 Minn. 282 (1871) line of precedent, and the State v. Brechon, 352 N.W.2d 745 (Minn. 1984) line of precedent, both of which interpreted the precursor to the current third-degree murder statute. The Stokely line establishes that the “without” clause of the statute was not an element of the offense, while the Brechon line views the “without” clause as either an element or an affirmative defense. The Court clarifies that the Stokely line of precedent applies, and the State need not prove what follows the word “without,” when the existence of the fact referenced in the “without” clause constitutes a more serious offense. The Brechon line of precedent applies when the existence of the fact referenced in the “without” clause of the statute makes the conduct not criminal.

The Court holds that the Stokely line of precedence applies to third-degree murder, as the existence of the fact referenced in the third-degree murder statute’s “without” clause (the defendant intended to effect the death of a person) makes the defendant’s conduct a more serious offense (second-degree intentional murder). Applying the Stokely line of precedent, the Court concludes that the third-degree murder statute does not require the State to prove beyond a reasonable doubt that the defendant lacked an “intent to effect the death of any person.” The Court of Appeals is reversed. State v. Hall, 931 N.W.2d 737 (Minn. July 31, 2019).


A. PERSON ADJUDICATED DELINQUENT FOR CRIME OF VIOLENCE MAY NOT POSSESS FIREARMS: As a minor, Appellant was adjudicated delinquent of a fifth-degree drug offense. Three years later, as an adult, he pleaded guilty to possession of a firearm by an ineligible person. He argues his juvenile adjudication did not qualify as a “crime of violence,” and, therefore, that he was able to possess a firearm.

Minn. Stat. § 624.713, subd. 1(2)’s plain language indicates that juvenile adjudication for crimes of violence fall within the statute’s scope. The statute renders ineligible to possess ammunition or firearms “a person who has been convicted of, or adjudicated delinquent or convicted as an extended jurisdiction juvenile for committing, in this state or elsewhere, a crime of violence.” The definition of “crime of violence,” however, causes tension, as it includes “felony convictions” for listed offenses. But to adopt Appellant’s argument that “conviction” in the crime of violence definition excludes juvenile adjudications contradicts the plain language of section 624.713, subd. 1(2). The only reasonable interpretation is that “convictions” refers to the elements of the underlying statutory offenses, rather than the ultimate disposition. Thus, the Court of Appeals holds that “crime of violence” in section 624.712, subd. 5, includes juvenile adjudications for the listed offenses. Section 624.713, subd. 1(2), prohibits persons who have been adjudicated delinquent of a “crime of violence” from possessing firearms. Roberts v. State, A19-0389, 2019 WL 3770841 (Minn. Ct. App. Aug. 12, 2019).


A. “OFFENSE DEFINITIONS” REFERS TO ELEMENT-BASED DEFINITIONS OF OFFENSES IN MINNESOTA STATUTES: Respondent was convicted of fifth-degree possession of a controlled substance in 2012 and first-degree sale of a controlled substance in 2016. The district court assigned one-half felony point for his 2012 conviction in calculating the sentence for his 2016 conviction. The Court of Appeals agreed with Respondent’s interpretations of the sentencing guidelines that section 2.B.7.a requires the court to apply the element-based offenses definitions in effect when Respondent committed the 2016 offense in order to determine the prior offense’s point value. The 2016 Drug Sentencing Reform Act (DSRA) changed the classification of certain fifth-degree drug offenses from felonies to gross misdemeanors. The Court of Appeals concluded that the State failed to prove the 2012 offense should be classified as a felony for purposes of Respondent’s criminal history score, because the State did not prove the weight of drugs involved in Respondent’s 2012 offense, as required under the DSRA-revised elements of the offense.

Section 2.B.7.a provides that, when calculating a criminal history score, “[t]he classification of a prior offense as a petty misdemeanor, misdemeanor, gross misdemeanor, or felony is determined by the current Minnesota offense definitions… and sentencing policies.” The Supreme Court notes that “classification” and “offense definitions” are not defined in the guidelines and looks to the dictionary definitions, the uses of the terms in section 2.B.7.a, and their use in the context of section 2.B.7 as a whole. The Court concludes that only one interpretation of section 2.B.7.a is reasonable: the phrase “offense definitions” refers to the element-based definitions of crimes. The Court of Appeals is affirmed. State v. Strobel, 932 N.W.2d 303 (Minn. Aug. 14, 2019).


A. COERCED ANOSCOPY IS UNREASONABLE: At the police station after his arrest following a controlled buy, Appellant was observed attempting to insert something in his rectum and a strip search revealed plastic coming from Appellant’s anus. Police obtained a search warrant authorizing hospital staff to use any medical/physical means necessary to retrieve the item from Appellant’s anus. Appellant refused a liquid laxative and other less-invasive measures. Appellant was then strapped down and sedated, and an anoscopy was performed, with two officers present, during which a baggie containing crack cocaine was removed. The doctor who performed the anoscopy testified at trial that no medical emergency existed at the time and that they could have waited for the baggie to exit Appellant’s body through natural processes. Appealing his fifth-degree drug conviction, Appellant argues the procedure by which the cocaine was removed violated his right against unreasonable searches and seizures. The district court and the Court of Appeals agreed that the search was reasonable under the circumstances.

The Supreme Court determines that the proper test to analyze the reasonableness of a forced anoscopy is the balancing test set forth in Winston v. Lee, 470 U.S. 753 (1985): (1) “the extent to which the procedure may threaten the safety or health of the individual,” (2) “the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity,” and (3) “the community’s interest in fairly and accurately determining guilt or innocence.”

The Court finds that the first factor weighs slightly in Appellant’s favor. Although minimal, an anoscopy does pose health and safety risks to the patient. The Court notes that the focus of this factor is on the risks associated with the procedure itself, not the risks associated with the baggie breaking inside of Appellant. The second factor weighs very heavily in Appellant’s favor. The anal cavity is undoubtedly very private, and the search involved an intrusive and forced, uncomfortable medical procedure, which two police officers witnessed. The final factor favors a conclusion that the procedure was a reasonable search. Police had a clear indication that Appellant had a baggie in his rectum that possibly contained controlled substances, and obtaining the drugs from the baggie was necessary to prove the possession charge.

In balancing the three factors, the Court finds that the second factor – “the significant and serious invasion of [Appellant’s] individual dignitary interests in personal privacy and bodily integrity” – outweighs the State’s need retrieve evidence to support the charge against Appellant. The Court specifically points to the invasiveness of the procedure and the availability of far less intrusive options to recover the evidence. The Court ultimately concludes that the coerced anoscopy of Appellant was unreasonable and that evidence obtained from the search must be suppressed, and remands to the district court for a new trial. State v. Brown, 932 N.W.2d 283 (Minn. Aug. 14, 2019).

B. COMPLIANCE WITH SUBSTANTIVE REQUIREMENTS OF SECTION 626A.42 FOR OBTAINING CELL-SITE LOCATION INFORMATION EVIDENCE IS SUFFICIENT: Appellant was convicted of premeditated first-degree murder and attempted premeditated first-degree murder for shooting multiple times at O.J., who died from multiple gunshot wounds, and A.A., who survived a gunshot to the head. Police used cell-site location information evidence and Gladiator Autonomous Receiver (GAR) drive-test evidence to confirm that Appellant was located near the shootings when O.J. and A.A. were shot.

Appellant argues the State obtained the CSLI evidence in violation of Minn. Stat. § 626A.42 and the Fourth Amendment, while the State argues it complied with the substantive requirements of section 626A.42 when it obtained the evidence under section 626A.28. Section 626A.28 addresses how the State may obtain some types of cellular data, while section 626A.42 governs how the State may obtain “location information” relating to an electronic device. Except under certain circumstances, inapplicable here, a tracking warrant must be used to obtain location information, and a tracking warrant may be issued only if the State shows probable cause to believe “the person who possesses an electronic device is committing, has committed, or is about to commit a crime.” Minn. Stat. § 626A.42, subd. 2. Under section 626A.28, the cellular data may be obtained with a warrant or, if prior notice to the subscriber or customer, with a court order if the State has shown “reason to believe the contents of a wire or electronic communication, or the records or other information sought, are relevant to a legitimate law enforcement inquiry.”

The State applied for and obtained Appellant’s CSLI evidence under section 626A.28, and did not obtain a warrant for the information under section 626A.42. However, the State complied with the substantive requirements of 626A.42, and the district court concluded there was probable cause. The Supreme Court finds both the State’s application and the district court’s finding of probable cause were valid. Thus, the Court finds the State did not obtain the CSLI evidence in violation of section 626A.42.

In Carpenter v. United States, 138 S.Ct. 2206 , 2217, 2221 (2018), the United States Supreme Court held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI,” that “location information obtained from [the defendant’s] wireless carriers was the product of a search,” and “that the Government must generally obtain a warrant supported by probable cause before acquiring such records.” In Appellant’s case, however, the district court did make a probable cause determination. Thus, the Supreme Court holds that the police did not violate the Fourth Amendment when they acquired Appellant’s CSLI evidence.

Appellant also argues the CLSI and GAR drive-test evidence should not have been admitted under Minn. R. Evid. 702. Rule 702 allows for the admission of expert testimony to assist the factfinder in understanding scientific or technical evidence, if it has foundational reliability. The rule also states that “if the opinion or evidence involves novel scientific theory, the proponent must establish that the underlying scientific evidence is generally accepted in the relevant scientific community.” The threshold question is whether the scientific theory or technique is novel. The Court clarifies that whether a scientific technique is novel is “not determined merely by reference to what Minnesota appellate courts have addressed in the past,” but, “[r]ather,… whether the technique is ‘new’.” The Court confirms that CSLI is not novel. Because the threshold requirement is not met, the Court does not address whether the underlying scientific theory has been generally accepted in the relevant scientific community. Based on the investigating agent’s testimony at the Frye-Mack hearing, the Court concludes that the district court did not abuse its discretion in determining the agent’s opinion based on the CSLI had foundational reliability.

As to the GAR drive-test evidence, the Court does not decide whether the evidence is novel or generally accepted in the relevant scientific community, finding the admission of the evidence harmless under the circumstances of this case. The investigating agent’s testimony based on the CSLI evidence, combined with other admissible evidence overwhelmingly placed Appellant in the vicinity of the shootings when they took place. So, there is no reasonable possibility it substantially affected the jury’s decision.

The Court also affirms the district court’s denial of Appellant’s Batson challenge and rejects Appellant’s pro se arguments, ultimately affirming Appellant’s convictions. State v. Harvey, No. 18-0205, 2019 WL 4051638 (Minn. Aug. 28, 2019).


A. FAIRNESS ANALYSIS REQUIRED TO DETERMINE IF ENTIRE RECORDED INTERVIEW SHOULD BE INTRODUCED: Appellant went to trial for a charge of second-degree criminal sexual conduct arising from his children’s mother’s allegation that he sexually abused their children. Prior to being charged, Appellant was interviewed by police and Appellant repeatedly denied the allegations, asserting his children’s mother was planting the allegations in the kids’ heads as a “retaliation thing.” At trial, the State requested to play a limited portion of the interview, specifically, the portion during which the State alleged Appellant lied about the living arrangements with his children. Appellant objected and asked that the entire recording be played. The district court allowed the State to play the short portion of the recorded interview. Appellant testified about his repeated denials of the allegations during his police interview, and he was cross-examined about the interview. The jury found Appellant guilty. His postconviction petition was denied, and he appealed, arguing the State should have been required to play the entire recording of his police interview.

Minn. R. Evid. 106 provides that, “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” Upon an adverse party’s demand that an entire recording be played pursuant to this rule, the district court must begin with the presumption that the adverse party has the right to demand that the entire statement be introduced and then conduct a fairness analysis to determine whether introducing the entire statement is appropriate. The Court of Appeals points to four fairness factors, delineated in federal case law, for a district court to consider: whether the entirety of the recording is necessary to “(1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.”

Here, the district court did not conduct any form of fairness analysis. Thus, it was an abuse of discretion for the court to deny Appellant’s request under Rule 106. This error was not harmless beyond a reasonable doubt. A key question in this case involved witness credibility, and presenting the entire interview could have given credibility to the testimony Appellant presented at trial. Of particular importance is the fact that the State asked Appellant a number of questions about the portion of his interview not played for the jury, leaving the jury unable to evaluate the State’s questions and Appellant’s answers within the context of the interview as a whole. Reversed and remanded for a new trial. Dolo v. State, No. A19-0063, 2019 WL 3884276 (Minn. Ct. App. Aug. 19, 2019).

B. DEFENDANT BEARS BURDEN OF PROVING REASONABLE POSSIBILITY THAT IMPROPER OPINION TESTIMONY SIGNIFICANTLY AFFECTED VERDICT: Appellant forcibly raped T.H. multiple times in the presence of his girlfriend and directed his girlfriend to rape T.H., after they all spent the night drinking together. T.H. went to the hospital for an examination following the assault and spoke with police. Police searched Appellant’s home after obtaining a search warrant. Appellant and his girlfriend were arrested, and, while in custody, Appellant was interviewed and denied any sexual contact or intercourse with T.H. Police also analyzed Appellant’s phone, finding pornographic images showing violence towards women. At trial, Appellant testified that he and T.H. had consensual intercourse. The detective testified at trial, among other things, about the photographs found on Appellant’s phone, which the detective suggested showed Appellant’s general propensity for violence toward women and which the detective testified corroborated T.H.’s story about what happened. The detective referenced a report he wrote analyzing the data retrieved from Appellant’s phone, which the defense never received from the State, although the defense did receive the actual cell phone data itself. The defense moved for a mistrial, but the district court denied the motion. The jury was instructed to ignore the detective’s opinions about whether Appellant’s possession of the pornographic images made him more likely to rape T.H. and the court instructed the State not to refer to the photographs or the detective’s opinion testimony. The jury convicted Appellant of two counts of first-degree criminal sexual conduct and false imprisonment. The Court of Appeals affirmed.

Appellant argues before the Supreme Court that he was deprived of a fair trial because the detective improperly testified and offered opinions about the photographs on Appellant’s phone. The parties do not dispute that the detective’s opinion testimony concerning the pornographic images should not have been admitted and prejudiced Appellant. However, the question is whether there is a reasonable possibility the wrongfully admitted evidence significantly affected the verdict, and the burden of proof rests on Appellant. The Supreme Court rejects Appellant’s argument that the State bears the burden of proving the detective’s opinion testimony was not prejudicial. The Court distinguishes State v. Cox, 322 N.W.2d 255 (Minn. 1982), which held that “[s]tatements of a court official about the merits of a criminal case raise a rebuttable presumption of prejudice,” because Cox involved the jury’s exposure to potentially prejudicial material outside of the trial process. In Appellant’s case, the detective’s opinion testimony was given while he was on the stand and subject to cross-examination.

The Court then examines the entire record and determines that Appellant did not establish that there is a reasonable probability that the detective’s opinion testimony significantly affected the verdict. The Court notes that the prosecutor’s conduct in eliciting improper testimony from the detective and not disclosing the detective’s report to the defense is troubling. However, there is “strong evidence supporting T.H.’s testimony at trial and pointing to [Appellant’s] guilt,” and the district court instructed the jury twice to disregard the detective’s improper testimony. Appellant’s conviction is affirmed. State v. Jaros, No. A18-0039, 2019 WL 3940200 (Minn. Aug. 21, 2019).


A. “LEAVES A PRIMARY ADDRESS” MEANS LIVING ARRANGEMENT AT PRIMARY ADDRESS HAS COME TO AN END: Appellant was required to register as a predatory offender for a 2014 solicitation of a child conviction, and signed a form acknowledging his duty, if he did not have a primary address, to report to law enforcement where he will be staying within 24 hours of leaving his former primary address. He registered a motel room as his primary address, but after four months his credit card used to rent the room was declined and he was locked out of the room on April 3, 2015. Three days later, on April 6, 2015, Appellant was arrested during an unrelated traffic stop and the next morning, the jail updated his registered primary address to the county jail, as of April 7, 2015. Appellant did not contact his probation officer or the motel manager during April 3-6, but he did contact the motel manager sometime after April 6 to arrange to pick up his belongings from the motel. A jury found Appellant guilty of failing to register. The Court of Appeals affirmed his conviction, finding sufficient evidence to support the conviction because Appellant knew of the registration requirements and did not make arrangements to continue living at the motel when his credit card was declined.

The registration requirement at issue involves an offender leaving a primary address. When leaving a primary address without a new primary address, the offender is required to register with the law enforcement authority that has jurisdiction in the area where the offender is staying within 24 hours of the time the offender no longer has a primary address. A knowing violation of this requirement is a felony. To decide whether the evidence was sufficient to support Appellant’s conviction, the Supreme Court determines what it means to “leave[] a primary address” under Minn. Stat. § 234.166, subd. 3a(a).

The Court finds that, based on other language in section 243.166, the Legislature intended “leaves” to mean more than a temporary departure. There must be a definitive change in an offender’s primary living arrangement. The Court defines “leaves a primary address” to mean “that an offender’s living arrangement at the primary address has come to an end.”

Lastly, the Court concludes that the circumstances proved allow a reasonable inference that Appellant did not know his living arrangement at the motel had been terminated during the 3-day period between April 3 and April 6, 2015. It is reasonable to infer Appellant was unaware of the declined charge for the room after the card had been used successfully for four months, Appellant was not in his room when he was locked out by the manager, his belongings were in the room suggesting he intended to stay, and the manager did not speak to Appellant until after April 6. Thus, the State presented insufficient evidence to support Appellant’s conviction for knowingly failing to register within 24 hours. State v. Alarcon, No. A17-1325, 2019 WL 3939858 (Minn. Aug. 21, 2019).