February 2018

DATE: FEBRUARY 2018

I. CONFRONTATION CLAUSE

A. NO CONFRONTATION CLAUSE VIOLATION TO ADMIT DOCUMENT WHOSE PURPOSE IS TO AUTHENTICATE NONTESTIMONIAL STATEMENTS: During his jury trial for first-degree DWI and driving after cancellation, Appellant stipulated to his three prior DWI convictions but did not stipulate to his license being revoked prior to the date of these offenses in July 2016. The State offered a three-page exhibit into evidence, the first page of which was a “Certificate of Order Sent” certifying that the attachment was a true, correct, and identical copy of an order in the Department of Public Safety’s records, and stating that the original had been mailed on a particular date. The next two pages was an order informing Appellant that his license would be revoked for driving under the influence effective February 16, 2016. No witness testified as to the foundation or authenticity of the exhibit and it was admitted without objection. The State was then permitted to amend the driving after cancellation charge to driving after revocation, and Appellant was found guilty of all counts. On appeal, Appellant argues the admission of the Certificate of Order Sent violated his right to confront witnesses and that the district court erred by admitting the exhibit with unredacted references to prior DWI convictions. The Court of Appeals points to United States Supreme Court precedent and Minnesota case law that suggests documents introduced only for authentication purposes, rather than to prove a fact, are not testimonial. Testimonial statements include (1) ex parte in-court testimony; (2) extrajudicial statements contained in formalized materials such as affidavits, depositions, prior testimony, or confessions; and (3) statements that would lead a reasonable witness to believe it would later be used at trial. The Certificate of Order Sent does not fall under the first category, as it is not testimony that a reasonable witness would expect to be used in a prosecutorial fashion to prove a fact. The second category is not representative of the certificate. The certificate also does not fall within the third category, because a reasonable person would believe it would only be used for authentication purposes. Additionally, the Court of Appeals finds the certificate is nontestimonial because it is duplicative of the underlying record, the Department of Public Safety record, which itself was nontestimonial. The Court of Appeals next concludes that district court committed plain error by admitting the unredacted exhibit, as it contained information Appellant had a right to exclude from the jury. However, Appellant’s substantial rights were not affected by the error, as the improper reference to his past convictions was not pervasive and the State put forth additional overwhelming evidence of Appellant’s guilt. Appellant’s convictions are affirmed. State v. Abdullahi Abdiqadir Noor, N.W.2d , A17-0349, 2018 WL 817284 (Minn. Ct. App. Feb. 12, 2018).

II. CRIMINAL VEHICULAR OPERATION

A. PASSENGER GRABBING STEERING WHEEL OF MOVING VEHICLE IS “OPERATING”: Appellant was drinking at a bar, after which B.H. drove Appellant and others to Appellant’s friend’s house. Appellant sat in the front passenger seat and began to argue with B.H. about directions. At one point, Appellant told B.H. she had missed a turn and took the steering wheel, yanking it toward himself. B.H. lost control of the vehicle and it crashed, causing great bodily harm to the three occupants. Appellant was charged with and convicted of CVO. The Court of Appeals affirmed. Minn. Stat. Ch. 609 does not define “operating,” and the appellate courts have not previously interpreted the term in the CVO context. Dictionary definitions of the term refer to acts that affect the function of a motor vehicle, which is to transport people or things. Manipulation of the steering wheel of a moving vehicle by a passenger falls within this definition. Held, “operating” a motor vehicle in Minn. Stat. § 609.2113, subd. 1, “means any act that causes a motor vehicle to function or controls the functioning of the motor vehicle, which includes manipulation of the steering wheel of a moving vehicle by a passenger.” Affirmed. State v. Tchad Hu Henderson, N.W.2d , A16-0575, 2018 WL 844382 (Minn. Feb. 14, 2018).

III. FORFEITURE

A. STATUTE DOES NOT AUTHORIZE FORFEITURE OF INSURANCE PROCEEDS: Appellant’s son crashed and totaled Appellant’s GNC Terrain SUV in a drunk driving incident, and police seized the vehicle. Appellant planned to recover on his automobile insurance policy rather than recover the totaled vehicle. Without Appellant’s knowledge, the police department told Appellant’s insurance company to hold any insurance proceeds, asserting a right to them. Appellant did not learn of this conversation until after the 60-day statutory deadline for his right to file a challenge to the forfeiture. Appellant filed the Demand for Judicial Determination anyway, arguing that the vehicle was improperly seized and that the insurance proceeds were not forfeitable. The District Court rejected Appellant’s filing as untimely. The Court of Appeals concluded that Appellant’s complaint was time-barred, but that insurance proceeds are not subject to forfeiture under Minn. Stat. § 169A.63. If used in the commission of a “designated offense,” a motor vehicle is subject to forfeiture under Minn. Stat. § 169A.63, subd. 8(a). By operation of the statute, “[a]ll right, title, and interest in a vehicle subject to forfeiture… vests in the appropriate agency upon commission of the conduct resulting in the designated offense.” Id. at subd. 3. A challenge of the forfeiture must be filed within 60 days of the vehicle owner’s receipt of notice of intent to forfeit. Id. at subd. 8(b)-(c). Appellant undoubtedly filed his challenge to the forfeiture of his vehicle after the expiration of the 60-day deadline.
Appellant separately challenges the forfeiture of the insurance proceeds. The phrase “right, title, and interest” conveys all interest in a piece of property. The Supreme Court notes that “interest” is defined as “[a] legal share in something; all or part of a legal or equitable claim to or right in property,” and, in the vehicle forfeiture context, that property is the “vehicle subject to forfeiture.” Only property rights in the vehicle are subject to forfeiture. Insurance proceeds are payments due under an insurance contract about a vehicle and are not a property interest in the vehicle. Whether such proceeds are forfeitable is not an issue properly litigated within the confines of Minn. Stat. § 169A.63. The Court of Appeals is affirmed. Russell Eldon Briles v. 2013 GMC Terrain, N.W.2d , A16-0768, 2018 WL 845974 (Minn. Feb. 14, 2008).

IV. FIREARMS

A. DRIVING UNDER INFLUENCE WITH PISTOL WITHIN ARM’S REACH IS CARRYING PISTOL “ABOUT THE PERSON’S CLOTHING OR PERSON”: Police conducted an inventory search of Respondent’s vehicle following his arrest for DWI, during which they found a loaded handgun in the center console. Respondent was charged with carrying a pistol while under the influence of alcohol, but the district court granted Respondent’s motion to dismiss for lack of probable cause, finding that Minn. Stat. § 624.7142, subd. 1(4), does not extend to the pistol in the center console. The Court of Appeals affirmed, finding no physical nexus between Appellant and the pistol. Minn. Stat. § 624.7142 makes it a crime for a person to “carry a pistol on or about the person’s clothes or person” while under the influence of alcohol. The Supreme Court first looks to the dictionary definitions of “carry,” “on,” and “about,” finding that, taken together, the only reasonable interpretation of § 624.7142 is that a person carries a pistol on or about one’s person either by (1) physically moving the pistol, or (2) having the pistol in one’s personal vicinity, at least within arm’s reach, while moving. The Court of Appeal’s “physical nexus” interpretation is unreasonable, because the statute does not prohibit only carrying a pistol “on” one’s person, and this interpretation would read the “or about” language out of the statute. The complaint here was sufficient to survive Respondent’s motion to dismiss. Reversed and remanded. State v. Christopher Michael Prigge, N.W.2d , A17-0403, 2018 WL 846426 (Minn. Feb. 14, 2018).

V. JUVENILE

A. MILLER AND JACKSON DO NOT LIMIT AUTHORITY TO SENTENCE JUVENILE TO CONSECUTIVE LIFE SENTENCES WITHOUT POSSIBILITY OF RELEASE: A juvenile at the time of his offense, Respondent was convicted of two counts of first-degree premeditated murder and sentenced to two mandatory terms of life imprisonment without the possibility of parole (“LWOR”). Respondent petitioned for postconviction relief arguing his sentence violated Miller v. Alabama, 567 U.S. 460 (2012), and Jackson v. State, 833 N.W.2d 272 (Minn. 2016). Respondent’s petition was granted and he was resentenced to two concurrent life sentences with the possibility of release after 30 years, after the district court concluded that Jackson made unavailable any information that would be elicited at a Miller hearing and any information which could theoretically support a consecutive sentence was beyond the court’s reach. Respondent’s conviction was final before Miller, but he is entitled to retroactive application of Miller’s rule under Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Miller held that, before a juvenile is sentenced to LWOR, the court must take into account the differences between children and adults, distinguishing between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Montgomery clarified that Miller’s rule categorically prohibits LWOR for juvenile offenders who are not irreparably corrupt.
The Minnesota Supreme Court recently held that the Miller/Montgomery rule will not be extended to multiple consecutive sentences of life imprisonment with the possibility of release after 30 years. State v. Ali (Ali II), 895 N.W.2d 237, 246 (Minn. 2017), cert. denied, No. 17-5578, 2018 WL 311461 (U.S. Jan. 8, 2018). Thus, the district court was mistaken in its belief that Miller limited its authority to impose consecutive sentences involving the possibility of release after 30 years in this case involving multiple first-degree murder convictions involving multiple victims. Jackson addressed whether the district court could re-impose a LWOR sentence on remand, which required a determination that the defendant fell within the “irreparably corrupt class” of juvenile offenders. The Minnesota Supreme Court concluded that too much time had passed since the defendant’s original sentencing, that a determination regarding permanent corruption was not possible. The district court was wrong in concluding that Jackson’s conclusions regarding a Miller hearing prevented it, at the time of sentencing, from exercising its discretion or considering all available facts relevant to a juvenile offender’s culpability and criminality, as this inquiry is fundamentally distinct from a Miller hearing. Reversed and remanded for a determination as to whether consecutive or concurrent sentences are appropriate. Brian Lee Flowers v. State, N.W.2d , A17-0750, 2018 WL