December 2019

Conditional Release

SIMULTANEOUS CONVICTIONS OF Multiple SEX OFFENSES DOES NOT RESULT IN A “PRIOR SEX OFFENSE CONVICTION” SUBJECTING OFFENDER TO LIFETIME CONDITIONAL RELEASE

After Appellant was convicted of one count of first-degree and one count of second-degree criminal sexual conduct, the district court sentenced him to concurrent 216-month and 140-month prison terms and a lifetime conditional release term. The Court of Appeals agrees with Appellant that a ten-year, rather than lifetime, conditional release term should have been imposed.

A ten-year conditional release term is mandatory for criminal sexual conduct convictions, unless the offender has a “prior sex offense conviction.” Appellant had no criminal sexual conduct convictions other than those at issue here, and those two convictions were adjudicated simultaneously. The court interprets Minn. Stat. § 609.3455, subd. 1(g) (definition of “prior sex conviction”), to determine whether convictions that are adjudicated simultaneously can result in a prior conviction and a present offense. An offender has a prior sex offense conviction “if the offender was convicted of committing a sex offense before the offender has been convicted of the present offense…”

The Supreme Court held in State v. Nodes, 863 N.W.2d 77 (Minn. 2015), that the definition of “prior sex offense conviction” is unambiguous and that “convicted” means the district court accepts and records a verdict of guilty, “before” means “earlier than” (the first conviction must be adjudicated at an earlier time than the second), and “present offense” means “now existing or in progress.”

Under these plain meanings, the court here concludes that simultaneous adjudication of convictions does not result in lifetime conditional release. No conviction is entered “before” the other and no conviction can be prior to the other when there is no temporal gap between a district court’s adjudication of offenses. Therefore, the district court improperly imposed a lifetime conditional release term upon Appellant. State v. Brown, A18-1880, 2019 WL 6460852 (Minn. Ct. App. Dec. 2, 2019).

FIRST AMENDMENT

STALKING BY TELEPHONE STATUTE VIOLATES FIRST AMENDMENT

Appellant was charged with two counts of stalking by repeatedly making phone calls to various Rice County employees, during which he swore, yelled, and threatened the sheriff and other employees. A jury found Appellant guilty on both counts. On appeal, Appellant argues the stalking by telephone statute, Minn. Stat. § 609.749, subd. 2(4), violates the First Amendment.

The Court of Appeals applies the four-step overbreadth analysis clarified by the Supreme Court in In re Welfare of A.J.B., 929 N.W.2d 840 (Minn. 2019): (1) interpret the challenged statute; (2) determine whether the statute’s reach is limited to unprotected categories of speech or expressive conduct; (3) if the statute is not limited to unprotected speech or expressive conduct, determine if a “substantial amount” of protected speech is criminalized; and (4) evaluate whether the statute’s construction may be narrowed or specific language severed to cure constitutional defects.

Combining the plain language of Minn. Stat. § 609.749, subd. 2(4), with the common meaning of its terms in context, the court concludes that the stalking-by-telephone statute requires the State to prove beyond a reasonable doubt that the defendant repeatedly made telephone calls or sent text messages to the victim or induced the victim to call the defendant, and by doing so (1) the defendant knew or had reason to know his conduct would cause the victim to feel fear, loss of power, worry, or ill-treated; and (2) the defendant’s conduct caused this reaction in the victim. The court finds the stalking-by-telephone statute similar to the stalking-by-mail statute held unconstitutional in A.J.B., in that both proscribe similar conduct, require conduct to be done “repeatedly,” have the same broad mens rea element, and require the State to prove the victim’s reaction, which limits the statute.

The court also finds the stalking-by-telephone statute has broad language that restricts protected speech. The statute criminalizes repeated telephone calls and text messages regardless of the content of the telephone call or text message. It also criminalizes both intentional and unintentional speech by including a mens rea element that is satisfied by proof of negligence. Also, the requirement of proof of the victim’s reaction is only an ancillary requirement, given that the types of reaction that must be proved are described with undefined and broad terms, which does not restrict the protected communications the statute reaches. Moreover, the subjective harm element is troubling because it need not be objectively reasonable.

Next, quoting A.J.B., the court finds the stalking-by-telephone statute overbroad, “due to the substantial ways” in which the statute “can prohibit and chill protected expression.” A.J.B. 929 N.W.2d at 856. As in A.J.B., and drawing on the reasoning in State v. Hensel, 901 N.W.2d 166 (Minn. 2017), the court is unable to remedy the statute to render it constitutional.

In so holding, and based on the Supreme Court’s analysis in A.J.B., the court expressly overrules State v. Hall, 887 N.W.2d 847 (Minn. Ct. App. 2016), which held section 609.749, subd. 2(4), was not unconstitutionally overbroad on its face or as applied, for reasons rejected by the Supreme Court in A.J.B. State v. Peterson, A18-2105, 2019 WL 6691516 (Minn. Ct. App. Dec. 9, 2019).

NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES STATUTE VIOLATES FIRST AMENDMENT

Appellant was charged with felony nonconsensual dissemination of private sexual images. He logged into his ex-girlfriend’s wireless and television provider accounts and obtained photos and videos containing sexual images of his ex-girlfriend. He threatened to, and later did, disseminate one of the images online. The district court denied Appellant’s motion to dismiss, finding the relevant statute, Minn. Stat. § 617.261, did not violate the First Amendment. After a stipulated facts trial, Appellant was convicted as charged.

The Court of Appeals applies the same overbreadth analysis outlined in A.J.B. and summarized by the court in Peterson, supra. First, the court finds that section 617.261 has a broad sweep. The statute makes it a crime “to intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed…, when: (1) the person is identifiable…; (2) the actors knows or reasonably should know that the person depicted in the image does not consent to the dissemination; and (3) the image was obtained or created under circumstances in which the actor know or reasonably should have known the person depicted had a reasonable expectation of privacy.” Minn. Stat. § 617.261, subd. 1. A violation of the statute is generally a gross misdemeanor, unless certain circumstances listed in subdivision 2(b) apply.

The court points to the broad mens rea requirement, contained in numbers (2) and (3) above, noting it creates a negligence mens rea that allows for a conviction under section 617.261 even if he did not actually know that the person depicted in the image did not consent to the dissemination or that the image was obtained or created under circumstances in which the person depicted had a reasonable expectation of privacy. The court also notes that the statute does not require proof of any actual or intended harm, only allowing for enhancement to a felony if harm or intent to harm is shown. See Minn. Stat. § 617.261, subd. 2(b)(1), (5).

Next, the court rejects the State’s argument that section 617.267 regulates only unprotected expressive conduct, specifically, content that appeals to the prurient interest, or obscene material. The court points out that the definition of obscenity requires, in part, that the material “portray sexual conduct in a patently offensive way.” While nonconsensual dissemination of another’s private sexual image is offensive, the focus of this inquiry is not on the circumstances surrounding an image’s dissemination. Not every image subject to regulation under section 617.261 portrays sexual conduct in a patently offensive way, so the statute’s sweep is not limited to expressive conduct that is categorically excluded from First Amendment protection.

The court then finds that the statute does serve a legitimate harm-preventing interest by proscribing disseminations that knowingly cause or are intended to cause a specified harm. However, the statute reaches much further by requiring only a negligence mens rea and lacking an intent-to-harm element, the combination of which allows the statute to reach protected First Amendment expression that neither causes nor is intended to cause specified harm.

The court holds that section 617.261 prohibits a substantial amount of constitutionally protected speech, and, as such, is overbroad in violation of the First Amendment. Images can be disseminated, received, and observed with ease “[i]n this age of expansive internet communication.” This makes the statute’s negligence mens rea particularly problematic, as the statute does not “define or explain the circumstances that should cause someone who observes an image described in [the statute] to reasonable know that the person depicted in the image did not consent to its dissemination or that the image was obtained or created under circumstances in which the person depicted had a reasonable expectation of privacy.” This makes the statute’s “reasonable knowledge” standard highly subjective. There are too many circumstances under “which impermissible disseminations under the statute may be further disseminated without the intent to harm necessary to proscribe expressive conduct without violating the First Amendment.”

Lastly, the court determines section 617.261 cannot be narrowly constructed or problematic language severed to remedy its constitutional defect, as doing so would be inconsistent with the statute’s plain language or require the court to rewrite the statute. Minn. Stat. § 617.261 is declared facially invalid under the First Amendment, and Appellant’s conviction is reversed. State v. Casillas, A19-0576, 2019 WL 7042804 (Minn. Ct. App. Dec. 23, 2019).

TRIBAL AUTHORITY

LICENSED PEACE OFFICER EMPLOYED BY TRIBE MAY SEIZE AND ARREST OUTSIDE OF RESERVATION FOR OFFENSE THAT OCCURRED OUTSIDE RESERVATION IF OFFICER IS ACTING WITHIN COURSE AND SCOPE OF EMPLOYMENT

While driving in Becker County, Appellant failed to stop for a school bus, after which he was seized by a police officer employed by the White Earth Band of Ojibwe and admitted to not stopping for the school bus’s stop signal arm and flashing lights, claiming his brakes had failed. Appellant was charged with two charges of failure to stop for a school bus. Appellant moved to suppress the statements he made to the White Earth police officer, arguing the officer did not have authority to seize him outside of the White Earth reservation for an offense that occurred off the reservation. Appellant’s motion was denied and the case proceeded to a stipulated facts trial. He was found guilty of both charges, but pursuant to an agreement between the parties, imposition of sentence on one count was stayed and the second was dismissed. On appeal, Appellant argues that the White Earth officer was not authorized by statute or the cooperative agreement between the White Earth Band and Becker County to seize and cite him outside the boundaries of the reservation.

In certain circumstances, Minn. Stat. § 629.40 specifically allows a state licensed peace officer to make an arrest within the state but outside the geographic area of his or her appointing authority. Specifically, section 629.40, subdivision 3, provides that when a licensed peace officer “in obedience to the order of a court or in the course and scope of employment or in fresh pursuit… is outside of the person’s jurisdiction, the person is serving in the regular line of duty as fully as though the service was within the person’s jurisdiction.” A number of appellate cases have applied the phrase “in the course and scope of employment” and upheld peace officers’ authority to stop and arrest offenders outside the officers’ jurisdiction. The Court of Appeals rejects Appellant’s argument that his case is distinguishable due to the cooperative agreement between the White Earth Band and Becker County, which he argues exclusively defines the course and scope of the White Earth officer’s employment and does not expressly authorize him to enforce state laws outside of the reservation. The agreement confers some state law enforcement authority on White Earth officers when they are on the reservation, but does not make any mention of what occurs outside the White Earth reservation boundaries.

The record makes clear that the Becker County dispatcher contacted the White Earth dispatcher to request assistance in locating Appellant, and that the White Earth officer in question was on duty when he responded. The officer also testified that he occasionally provided assistance to Becker County outside of the reservation boundaries. He also testified that he intended to be outside the reservation only briefly in his attempt to locate Appellant. Under these facts, the court finds that the White Earth officer was acting in the course and scope of his employment when he seized and cited Appellant. The district court’s denial of Appellant’s motion to suppress evidence is affirmed. State v. Bellcourt, A19-0100, 2019 WL 6834143 (Minn. Ct. App. Dec. 16, 2019).

GIVING A FICTICIOUS NAME

“FICTITIOUS NAME” INCLUDES ANY NAME OR VARIANT THAT WOULD TEND TO MISLEAD OFFICER FROM TRUE IDENTITY

To avoid revealing an arrest warrant during a traffic stop, Appellant, Dakota James-Burcham Thompson, identified himself to police as Dakota James Burcham. The officer was able to determine Appellant had withheld his last name and found the outstanding arrest warrant. Appellant was arrested under the warrant and charged with giving a “fictitious name” to a peace officer. At trial, Appellant testified that “Dakota James Burcham” was his name prior to being adopted at nine or ten years of age, and that he used that name for tribal matters because the tribe allegedly lacked his adoption records. He also testified that he has gone by “Dakota James-Burcham Thompson,” his actual and legal name, for 11 to 13 years. The jury found Appellant guilty, and on appeal Appellant argues there was insufficient evidence to prove he gave a fabricated or concocted name to the deputy, as he had merely given a shortened version of his actual name.

Minn. Stat. § 609.506, subd. 1, criminalizes giving a “fictitious name other than a nickname” to a peace officer “with intent to obstruct justice.” “Fictitious” is not defined. The statute evidences the legislature’s awareness that an officer is authorized a person of interest his name during a stop or arrest to inquire in police databases. So, the person’s “name” refers to his full and actual name to determine his actual identity. Thus, it follows that a “fictitious” name is one that would tend to mislead in the investigatory context.

The Court of Appeals rejects Appellant’s argument that shortening his name did not result in a concocted or fabricated name, as misidentification can certainly result from adding to or omitting one’s last name. Moreover, Appellant admitted he identified himself as he did to prevent the deputy from identifying who he really was, and, as by doing so, he provided a fiction. The court ultimately concludes “that the term ‘fictitious name’… is not limited to a name comprised entirely of made-up components; it includes any name or name variant that would tend to mislead an inquiring police officer away from one’s true identity.” State v. Thompson, A19-0253, 2019 WL 7042803 (Minn. Ct. App. Dec. 23, 2019).

CRIMINAL PROCEDURE

EACH FINAL JUDGMENT ON SEVERED CRIMINAL CHARGES IS APPEALABLE

Appellant was charged with two counts of first-degree and three counts of second-degree criminal sexual conduct, which related to his abuse of four victims. One count was dismissed prior to trial and the counts relating to the remaining three victims were severed. He was first found guilty of two counts of first-degree criminal sexual conduct toward one victim (J.R.) and sentenced to concurrent terms of 86 months and 110 months. Two weeks later, he was tried for one count of second-degree criminal sexual conduct against C.S., and a jury found him guilty. Appellant was sentenced to 21 months, to be served consecutively to his previous sentence. On appeal, Appellant argues the court improperly admitted evidence of his other bad acts, and the State argues the appeal of his first-degree convictions is untimely.

First, the Court of Appeals holds that the appeal of Appellant’s first-degree criminal sexual conduct convictions is untimely. For a felony, an appeal of a final judgment must be made within 90 days under Minn. R. Crim. P. 28.02, subd. 4(3)(a). Appellant was sentenced for the first-degree convictions on April 11, 2018, but did not appeal them until September 14, 2018. Thus, his claims as to his first-degree convictions are untimely.

Next, the court finds the district court did not abuse its discretion when it permitted Appellant’s other victims to testify at the trial relating to his abuse of C.S. The district court made thorough findings and conclusions that satisfied each element of the five-step Spreigl test. State v. Tomlinson, A18-1522, 2019 WL 7042800 (Minn. Ct. App. Dec. 23, 2019).

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