December 2023

CRIMINAL SEXUAL CONDUCT: PREVIOUS PREDATORY CRIME FOR ENGRAINED OFFENDER SENTENCING ENHANCEMENT QUALIFIES IF COMMITTED BEFORE SENTENCING

Appellant was convicted of second-degree criminal sexual conduct and the district court imposed an enhanced sentence, finding Appellant was both a dangerous offender and an engrained offender. Appellant appealed his conviction and sentence.

To be considered a “dangerous offender” at sentencing, “at the time of sentencing,” the offender must have “two or more prior convictions for violent crimes.” The dangerous offender statute, Minn. Stat. § 609.1095, defines “prior conviction” as one “that occurred before the offender committed the next felony resulting in a conviction and before the offense for which the offender is being sentenced.” The district court used a 2010 criminal sexual conduct conviction and 2017 second-degree assault conviction as the prior offenses. However, the 2017 conviction was based on an offense that occurred in 2016. The offense in this case occurred in 2015. Thus, Appellant only had one prior conviction for a violent crime under section 609.1095 and the district court erred in determining he met the criteria to be sentenced as a dangerous offender.

However, the district court’s finding that Appellant should be sentenced as an engrained offender was correct. An offender convicted of criminal sexual conduct is eligible for an enhanced offense as engrained offender if they are a “danger to public safety” and the factfinder determines “the offender’s criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term treatment or supervision extending beyond the presumptive term of imprisonment and supervised release.” Minn. Stat. § 609.3455, subd. 3a(a).

An offender may be a danger to public safety if, among other possibilities, they previously committed a predatory crime. A “predatory crime” includes second-degree assault (Appellant’s 2017 conviction), but not second-degree criminal sexual conduct (Appellant’s 2010 conviction). Appellant argues his assault conviction does not qualify because it was committed after the 2015 criminal sexual conduct offenses. Section 609.3455 directs the district court to impose an enhanced sentence if it “determines” the offender is a public safety danger. The use of the present tense form of “determines” signifies that the time frame for assessing the offender’s danger “is the point in time when the fact finder makes that determination.” The Court holds that the statute’s plain meaning “is that the predatory offense must have been committed before ‘the fact finder determines that the offender is a danger to public safety.’” Appellant’s assault offense was committed before the sentencing phase in this case, so the district court properly found he was a danger to public safety.

The Court also finds ample support in the record for the district court’s determination that Appellant’s criminal sexual behavior was so engrained as to warrant extended supervision. As the record also contains sufficient evidence to support his conviction, both Appellant’s conviction and sentence are affirmed. State v. Balsley, A23-0133, 2023 WL 8361314 (Minn. Ct. App. Dec. 4, 2023).

PROCEDURE: REVERSAL OF CONVICTION IS NOT REQUIRED FOR AN UNFULFILLED PROMISE IN A PLEA AGREEMENT IF THE RECORD DOES NOT CLEARLY REVEAL THE AGREEMENT’S

Appellant pleaded guilty to two counts of third-degree criminal sexual conduct, in two separate cases, pursuant to a plea agreement that resolved both cases and which Appellant argues called for concurrent stayed prison sentences. He was instead sentenced to consecutive stayed prison sentences. The plea petition in each case stated the agreed-upon sentence in one case was as follows: “10 years of supervised probation. Guideline stay of execution with cap of 90 days jail.” Each petition also said the sentence in the second case was as follows: “10 years of supervised probation, guideline stay of execution with cap of 90 days jail, concurrent.” At the sentencing hearing, the prosecutor made conflicting and confusing statements about whether the agreement called for concurrent or consecutive sentences.

Where a promise made in a plea agreement is not fulfilled, “the defendant cannot be said to have voluntarily entered into the plea agreement.” A direct appeal challenging the validity of a guilty plea is appropriate where the record is complete. Here it is not. The record is not clear as to whether the parties agreed that Appellant’s two 90-day probationary jail terms would be concurrent or whether his stayed prison terms would be concurrent. The proper avenue for Appellant’s challenge is a postconviction petition, as postconviction proceedings allow for the presentation and evaluation of matters not of record. Thus, Appellant’s convictions are affirmed.

However, Court finds the district court erred by failing to state its reasons for imposing consecutive stayed sentences. Under the sentencing guidelines, the presumptive sentence is a concurrent stayed sentence, so the district court could impose a consecutive sentence only by departing from the guidelines. The district court never stated its intention to depart, nor did it state any reasons for a departure. The Court affirms Appellant’s convictions but reverses the sentences and remands for imposition of concurrent stayed prison sentences. State v. Arola Johnson, A23-0134, 2023 WL 8360167 (Minn. Ct. App. Dec. 4, 2023).

RIGHT TO A FAIR TRIAL: NEW TRIAL GRANTED DUE TO PROSECUTOR’S STATEMENTS DURING CLOSING THAT APPELLANT LOST THE PRESUMPTION OF INNOCENCE BEFORE DELIBERATIONS

Appellant was charged with second-degree criminal sexual conduct following allegations that he abused his girlfriend’s 11-year-old daughter. At trial, during its rebuttal closing argument, the State told the jury, “[Appellant] no longer has that presumption… He no longer has that presumption of innocence. He has been proven guilty beyond a reasonable doubt… he no longer has that presumption of innocence.” The jury found Appellant guilty of one count of second-degree criminal sexual conduct. The Court of Appeals affirmed Appellant’s conviction.

The Supreme Court examines whether the State’s presumption of innocence statements deprived Appellant of his Sixth Amendment right to a fair trial. Because defense counsel did not object to the State’s closing argument, the Court applies the modified plain error test, which requires (1) Appellant to demonstrate the prosecutorial misconduct was plain error; (2) the State to thereafter demonstrate the error did not affect Appellant’s substantial rights; and (3) the reviewing court to determine if ensuring fairness and the integrity of the judicial system requires addressing the error. State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006).

The Court finds the State’s statements were not consistent with Minnesota law. A defendant is not proven guilty until a jury has deliberated and reached the conclusion of guilt. Until this conclusion is reached, a defendant retains the presumption of innocence. This error was plain because it contravenes well-established law.

The Court also finds the evidence against Appellant was not strong, as it consisted primarily on uncorroborated, inconsistent reports by the alleged victim regarding acts from many years prior. Although the trial court gave a pattern instruction on the presumption of innocence, the Court finds it was not specific enough to remedy the State’s error, as it failed to correct the State’s misstatement or clarify that Appellant retained the presumption of innocence. The Court finds a reasonable likelihood that the State’s misstatement may have had a significant effect on the jury and, therefore, Appellant’s substantial rights were affected.

Lastly, the Court finds it is necessary to address the State’s error to ensure fairness and the integrity of the judicial proceedings. Remanding for further proceedings allows the State to still seek justice for the alleged victim, while enforcing the constitutional protections afforded to all criminal defendants. State v. Portillo, A21-1621, 2023 WL 8610196 (Minn. Dec. 13, 2023).

FIREARMS: STATUTE PROHIBITING POSSESSION OF A FIREARM WITHOUT A SERIAL NUMBER IS NOT UNCONSTITUTIONALLY VAGUE

The State appeals the dismissal of a charge against Respondent of possessing a privately-made firearm lacking a serial number. The Court of Appeals finds the relevant charging statute, Minn. Stat. § 609.667(3), not unconstitutionally vague and finds probable cause to support the charge, reversing and remanding to the district court.

Section 609.667(3) prohibits “receiv[ing] or possess[ing] a firearm that is not identified by a serial number.” “Serial number” is the number required under 26 U.S.C. § 5842. Section 609.667(3) incorporates the definition of “serial number” used in the federal law, but it does not limit its application to only firearms required to have a serial number by federal law. Section 609.667(3) is not vague because it plainly “prohibits the possession of any firearm that is not identified by serial number, regardless of whether federal law would require a serial number for a particular firearm.” Section 609.667(3), then, applies to privately-made firearms.

The record shows Respondent knowingly possessed a firearm and that the firearm had no serial number. Thus, there was probable cause to support the charge against Respondent. State v. Vagle, A23-0863, 2023 WL 8706087 (Minn. Ct. App. Dec. 18, 2023).