December 2020

SENTENCING

FIFTH DEGREE POSSESSION IS NOT A GROSS MISDEMEANOR FOR CRIMINAL HISTORY CALCULATIONS IF THE DEFENDANT PREVIOUSLY PLEADED GUILTY TO A PETTY MISDEMEANOR DRUG OFFENSE

When calculating Appellant’s criminal history following his conviction for felony domestic assault, the district court assigned four and one-half felony points, which included one-half felony point for Appellant’s 2007 conviction for fifth-degree possession of cocaine. Under Minn. Stat. § 152.025, subd. 4, for some possession offenses, including Appellant’s 2007 offense, “[a] person convicted [of a fifth-degree controlled substance crime], who has not been previously convicted of a violation of this chapter or a similar offense in another jurisdiction, is guilty of a gross misdemeanor.”

Prior to 2007, Appellant pleaded guilty to a petty misdemeanor violation of chapter 152 for possessing a small amount of marijuana. However, Appellant argues this petty misdemeanor offense is not a “convict[ion] of a violation” of chapter 152, because petty misdemeanors are not considered “crimes” and a “conviction” requires a finding of guilt for a crime. Without this petty misdemeanor drug offense, Appellant argues his 2007 conviction should qualify as a first-time fifth-degree possession offense and, therefore, a gross misdemeanor for his criminal history calculation.

The Court of Appeals rejects Appellant’s argument, noting that section 152.025, subd. 4, refers to “convict[ions] of [ ] violation[s]” of chapter 152 and does not use the term “crime.” “Conviction” is defined in section 609.02, subd. 5, to include a guilty plea accepted and recorded by the district court. Thus, when Appellant entered a guilty plea, and the court accepted and recorded Appellant’s guilty plea, to a petty misdemeanor violation of chapter 152, he was “convicted of a violation” of chapter 152. As such, Appellant’s 2007 cocaine possession offense was not a first-time possession offense and it does not qualify for classification as a gross misdemeanor. The district court properly counted the offense as a felony when calculating Appellant’s criminal history score. State v. Morgan, N.W.2d, 2020 WL 7484757 (Minn. Ct. App. Dec. 21, 2020).

FIREARMS

A DISTRESS FLARE IS NOT A “FIREARM”

Appellant was previously adjudicated delinquent of a violent crime and was prohibited from possessing firearms. Police found Appellant at a store when responding to a call of a burglary in progress and discovered a distress flare launcher in his pocket. Appellant was charged with, among other offenses, possession of a firearm by an ineligible person. The district court granted Appellant’s motion to dismiss that charge, finding a distress flare launcher is not a “firearm” under Minn. Stat. § 624.713, subd. 1. The Court of Appeals concluded a “firearm” must be a “weapon,” but held that a distress flare launcher could be a “firearm” if Appellant used or intended to use it as a weapon.

The Supreme Court holds that a “firearm” under section 624.713, subd. 1, “is an instrument designed for attack or defense that expels a projectile by the action or force of gunpowder, combustion, or some other explosive force.” Under this definition, the Supreme Court concludes that a distress flare launcher is not a firearm.

Section 624.713, subd. 1, does not define “firearm,” so the Supreme Court looks to dictionary definitions, all of which define “firearm” as a “weapon.” The dictionary definitions of “weapon” further make clear that it is “an instrument designed for attack or defense.” This interpretation is consistent with the nature of section 624.713, subd. 1, which establishes a possession crime, not a crime based on a defendant’s use or intended use. The record here establishes that a distress flare launcher is not an instrument designed for attack or defense. As it is not a “weapon,” it cannot be a firearm under section 624.713, subd. 1. State v. Glover, N.W.2d, 2020 WL 7636412 (Minn. Dec. 23, 2020).

CITY CODE VIOLATIONS

A LETTER CONTESTING A ZONING VIOLATION NOTICE IS NOT A “REQUEST RELATING TO ZONING” IF IT IS NOT ON AN AGENCY APPLICATION FORM OR DOES NOT CLEARLY IDENTIFY A REQUEST FOR GOVERNMENT APPROVAL

Respondents are co-owners of an undeveloped parcel of land fronting Lake Minnetonka, on which they installed a “seasonal dock” in April 2017. The city issued a notice of zoning violation on May 11, 2017, because the property lacked a “principal dwelling” and Respondents did not occupy the property. Respondents responded by letter on May 13, 2017, arguing the city code prohibited only “permanent” or “floating,” but not seasonal docks on unoccupied property. The city did not respond to the letter. The city ultimately withdrew its notice violation, but, in July 2017, the city adopted an amended ordinance prohibiting the use of any type of dock on unoccupied property. Respondents again installed a dock in June 2018, and the city issued another notice violation. Respondents were charged with two misdemeanor violations of the city code. The district court dismissed the charges for lack of probable cause, and the Court of Appeals affirmed.

The Supreme Court considers whether Respondents’ May 13, 2017, letter was a “request” that triggered Minn. Stat. § 15.99, subd. 2(a)’s 60-day time period and automatic approval provisions. Under that section, “[a]n agency must approve or deny within 60 days a written request relating to zoning…for a permit, license, or other governmental approval of an action.” “Request” is defined in subd. 1(c) as “a written application related to zoning… for a permit, license, or other governmental approval of an action,” and must either be submitted to the agency on an agency application form or “clearly identify on the first page the specific permit, license, or other governmental approval being sought.” If the agency does not respond within 60 days, the request is automatically approved.

Respondents’ letter was not made on an application form from the City, nor does the first page of the letter clearly identify the permit, license, or other governmental approval being sought. Therefore, for the 60-day time period to apply, the letter must clearly identify the specific “other governmental approval sought.” The court notes that “governmental approval” is not defined in section 15.99 and is ambiguous, as the phrase is open to multiple reasonable interpretations. The court concludes that “other governmental approval” refers “to the official permission that a person must seek and receive from an agency before undertaking the specific action that the person proposes to pursue,” that is, “a prospective request for agency permission, rather than retroactive approval by the government of a person’s unilateral action or view of the law.”

Under this definition, Respondents’ letter was not a “request” under section 15.99 and their dock was not automatically approved upon the city’s non-response to the letter. The matter is remanded to the district court to reinstate the criminal complaint against Respondents. State v. Sanschagrin, N.W. 2d, 2020 WL 7759466 (Minn. Dec. 30, 2020).

FIRST AMENDMENT

NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES STATUTE IS A CONSTITUTIONAL RESTRICTION ON SPEECH

Minn. Stat. § 617.261, subd. 1, 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 actor 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 knew or reasonably should have known the person depicted had a reasonable expectation of privacy.” Respondent was charged with a felony-level violation of section 617.261, after he accessed his ex-girlfriend’s online accounts, obtained a photograph and video of her engaged in sexual relations with another individual, threatened to disseminate the images, and sent the photograph and video to 44 individuals and posted them online. He moved to dismiss the charge, arguing it violated the First Amendment. The district court denied the motion and found him guilty after a stipulated facts trial. The Court of Appeals reversed, finding section 617.261 overbroad in violation of the First Amendment.

As to Respondent’s first argument, that section 617.261 is an impermissible content-based restriction on speech, the Supreme Court agrees with the Court of Appeals that section 617.261 criminalizes more than just obscenity, but finds that the statute is constitutional because it is narrowly tailored to serve a compelling State interest. The statute prohibits both protected and unprotected speech, as it covers more than only obscenity, speech integral to criminal conduct, and child pornography, as the State argues. Some sexual images may be indecent, but not obscene. Private sexual images are also generally not used to facilitate the commission of a crime, are not offers to engage in illegal transactions, and are not requests to obtain unlawful material. Furthermore, more private sexual images depict adults, not children. Thus, because not all of the speech proscribed by the statute is unprotected, section 617.261 is not exempted from the First Amendment.

Next, the court declines to ascertain whether the statute is a content-based restriction, requiring strict scrutiny analysis, or content-neutral restriction, requiring an intermediate scrutiny analysis. The court does so because it finds section 617.261 survives even “the more searching strict scrutiny analysis.” The State has a compelling interest in protecting its citizens from the “harrowing,” “profound” effects of the nonconsensual dissemination of private sexual images. Nonconsensual dissemination of private sexual images can cause victims deep psychological damage and permanently tarnish their reputations. The problem is also “widespread and continuously expanding.”

The court determines that section 617.267 is narrowly tailored to solve this problem. The statute is the least restrictive means available to address the problem. The statute criminalizes only private speech that is intentionally disseminated without consent, falls within numerous specific statutory definitions, and is outside of seven broad statutory exemptions.

Respondent also argues section 617.267 is unconstitutionally overbroad because it burdens a substantial amount of protected speech. While the court notes “that the relationship between the overbreadth doctrine and a strict scrutiny analysis is unclear,” the court declares that “[w]hen a statute is challenged on both scrutiny and overbreadth grounds, a scrutiny analysis should be conducted first,” “because a statute that survives a scrutiny analysis will necessarily survive the overbreadth analysis.” Here, because section 617.267 survives strict scrutiny, the court does not complete an overbreadth analysis, and the statute is upheld as constitutional. State v. Casillas, N.W.2d, 2020 WL 7759952 (Minn. Dec. 30, 2020).