January 2018

DATE: JANUARY 2018

I. EXPUNGEMENT

B. TWO- AND FOUR-YEAR CONVICTION-FREE PERIOD MUST OCCUR BETWEEN DISCHARGE OF SENTENCE AND FILING OF PETITION: Appellant was convicted in 2000 of misdemeanor and gross misdemeanor harassment restraining order violations. In 2002, he was convicted of third-degree DWI. He filed petitions to expunge the HRO convictions in 2015. At issue is Minn. Stat. § 609A.02, subd. 3(a)(3)-(4), which says a petition is allowed if the petitioner was convicted of a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence, or convicted of a gross misdemeanor and not convicted of a new crime for a least for years since discharge of the sentence. The question is whether the waiting periods are only from the discharge date to the end of two/four years, or if they are the two-/four-year periods before the filing of the petition? Held, the two- or four-year conviction-free waiting period must occur any time between the date the sentence is discharged and the date the expungement petition is filed. Without deciding if Appellant’s petitions should have been granted, the Court of Appeals concludes that the district court is permitted to consider the petitions, because Appellant had no convictions in the two years immediately preceding his misdemeanor HRO expungement petition, and no convictions in the four years immediately preceding his gross misdemeanor HRO expungement petition. State v. C.W.N., N.W.2d , A17-0728, A17-0729, 2018 WL 256738 (Minn. Ct. App. Jan. 2, 2018).

II. DWI

A. TRAHAN AND THOMPSON DO NOT APPLY RETROACTIVELY ON COLLATERAL REVIEW: Appellant was convicted of test refusal before Trahan and Thompson were decided, so he filed a postconviction petition arguing the cases created a new rule with retroactive effect. Trahan and Thompson, applying the United States Supreme Court rule announced in Birchfield v. North Dakota, established that Minnesota’s test refusal statute is unconstitutional with respect to warrantless blood and urine tests. The Court of Appeals considers whether the new rule is substantive or procedural to determine its retroactive effect. The Court reiterates that a substantive rule narrows the scope of a criminal statute by placing particular conduct beyond the State’s power to punish, while a procedural rule regulates only the manner of determining a defendant’s culpability. The Court holds that Trahan and Thompson merely modified the procedure law enforcement must follow before administering a blood and urine chemical tests. Now, police must either obtain a search warrant or establish exigent circumstances. Trahan and Thompson do not limit the range of criminal conduct that may be punished, but instead alter the range of acceptable police conduct relating to chemical tests. As a new procedural rule, it may not be applied retroactively. Johnson v. State, N.W.2d , A17-0842, A17-0883, 2018 WL 256745 (Minn. Ct. App. Jan. 2, 2018).

III. RESTITUTION

A. MANDATORY RESTITUTION FOR IDENTITY THEFT NOT A DUE PROCESS VIOLATION: Appellant pleaded guilty to identity theft and the district court ordered him to pay the mandatory minimum restitution of $1,000 to each of the 66 victims. On appeal, Appellant argues the restitution order violates due process and imposes an unconstitutional fine. As to procedural due process, the Supreme Court finds that the Matthews balancing test does not apply to a restitution order at a sentencing hearing. The order arises from the criminal process and Appellant received the full range of procedural protections afforded to all criminal defendants. Even under Matthews, however, Appellant’s claim fails. There was no risk of an erroneous deprivation of a private interest, because Appellant expressly admitted the material facts necessary for the restitution order. Appellant also received notice of the mandatory restitution in a pre-plea investigation report and had an opportunity to be heard on his restitution challenges at his sentencing hearing. With respect to substantive due process, the Supreme Court notes that rational basis review applies because no fundamental right is implicated. The State has a legitimate interest in ensuring that identity theft victims are compensated for losses suffered when their personal information is unlawfully used. The mandatory minimum restitution requirement is not an arbitrary method of compensating the victims who may never be able to fully account for their losses or harm, because damages are hard to discover and measure in the identity theft context. Lastly, the Supreme Court confirms that the mandatory minimum restitution requirement is not a fine, because it is part of a defendant’s sentence and paid to the victims, not the State. State v. Rey, N.W.2d , A16-0198, 2018 WL 265283 (Minn. Jan. 3, 2018).

B. OFFENDER’S INABILITY TO PAY CANNOT DISTINGUISH VICTIM’S RIGHT TO RESTITUTION FOR APPROPRIATE LOSSES: Appellant was convicted of second-degree murder and ordered to pay restitution for funeral expenses and lost wages to the victim’s spouse. Appellant objected, claiming the inability to pay while serving his 366-month sentence. The district court found the items of restitution appropriate, but revoked its restitution order based on Appellant’s minimal potential earning capacity in prison. Minn. Stat. § 611A.04 gives a crime victim “the right to receive restitution,” and directs the district court to consider the amount of the victim’s loss and the offender’s ability to pay. The Court of Appeals rejects Appellant’s argument that the statute only confers standing to receive restitution, not an absolute right to receive it. The statute’s language is plain that restitution is a right. The statute gives the court discretion to deny restitution when no economic loss is proven and to determine the proper amount of restitution, but not to deny restitution altogether where there is an appropriate victim with valid expenses requesting a “reasonable” amount of restitution. Here, the victim’s spouse was an appropriate “victim” under the restitution statute, and the requested items of restitution were appropriate. Denial of all restitution was contrary to the victim’s spouse’s right to restitution. In its ultimate order, the district court considered only the offender’s ability to pay and its findings about the offender’s inability to pay were unsupported by the record. State v. Davis, N.W.2d , A17-1108, 2018 WL 414376 (Minn. Ct. App. Jan. 16, 2018).

IV. TRAFFIC STOP

A. DRIVING ON LANE MARKING IS MOVEMENT FROM LANE: Appellant challenges both his conviction for DWI and driver’s license revocation, arguing the stop of his vehicle, based on Appellant driving on but not over the fog line, was unconstitutional. The Court defines “lane,” as used in Minn. Stat. § 169.18, subd. 7(a), which makes it a violation to move from one’s traffic lane, as the area between markings, but not the lane markings themselves. Thus, Appellant driving on the fog line gave police a reasonable, articulable suspicion of a traffic violation. His conviction and driver’s license revocation are affirmed. Kruse v. Comm’r Pub. Safety, N.W.2d , A17-0552, A17-0564, 2018 WL 312944 (Minn. Ct. App. Jan. 8, 2018).

V. JURY INSTRUCTIONS

A. LIMITING INSTRUCTION ON RELATIONSHIP EVIDENCE ENCOURAGED, BUT FAILURE TO DO SO SUA SPONTE NOT AUTOMATIC PLAIN ERROR: After a jury trial, Appellant was convicted of domestic assault and theft of a motor vehicle. Prior to trial, the district court found relationship evidence admissible over Appellant’s objection, and the evidence was introduced at trial through the victim’s testimony, without objection. Appellant did not request a limiting jury instruction. Appellant argues that the district court erred in allowing the relationship evidence without giving a limiting instruction sua sponte. The Court of Appeals reviews the district court’s conduct for plain error. Both parties agree that the district court’s failure to give a limiting instruction sua sponte was plain error, but disagree as to whether the error affected Appellant’s substantial rights. The Court concludes, however, that the district court did not commit plain error, citing prior cases holding that a precautionary limiting instruction should be given in relationship evidence cases, even if none has been requested, but the failure to do so may not be plain error under the facts of a particular case. Specifically, the Court highlights the Supreme Court’s decision in State v. Taylor, 869 N.W.2d 1 (Minn. 2015), which analogized prior conviction impeachment evidence to Spreigl evidence and held that the district court did not err in failing to provide a sua sponte limiting instruction. Here, Appellant was represented by counsel, did not request a limiting instruction, and made no objection to the lack of instruction. At the pretrial hearing, the district court also conducted a sound analysis of the probative value versus prejudicial effect of the evidence, which is supported by the record. Furthermore, the relationship testimony was brief, limited, and not unduly emphasized. The Court holds that the district court did not plainly err in failing to provide a limiting instruction sue sponte in this case. However, the Court “again reiterate[s] the strong preference that a district court give a limiting instruction for relationship evidence at the time it is admitted and again during final jury instructions.” State v. Melanson, N.W.2d , A16-1567, 2018 WL 313074 (Minn. Ct. App. Jan. 8, 2018).

VI. SURREPTITIOUS INTERFERENCE WITH PRIVACY

A. PROOF OF ENTRY UPON ANOTHER’S PROPERTY WITH INTENT TO INTRUDE UPON PRIVACY NOT REQUIRED: While staying at his brother’s home, Appellant was caught on the garage roof watching his niece’s friend undress for bed. He was convicted of interference with the privacy of a minor, furnishing alcohol to a minor, and disorderly conduct. On appeal, he argues the evidence is insufficient to support his privacy interference conviction because the State did not prove that he entered another’s property “with the intent to intrude upon or interfere with the privacy of a member of the household.” Minn. Stat. § 609.746, subd. 1(e)(2), requires a violation of section 609.746, subd. 1, against a minor. Section 609.746, subd. 1(a) describes surreptitious interference with privacy and includes three elements (1) entry upon another’s property, (2) surreptitious gazing, staring, or peeping into another’s house; and (3) does so with intent to intrude upon or interfere with the privacy of a member of the household. The Court of Appeals finds that the statute is ambiguous as to what “does so” in the third element applies to. Looking to former versions of the statute, the Court finds that the intent element applies only to the gazing element, and not the entry element. Thus, the State was not required to prove Appellant entered his brother’s property with the intent to interfere with the privacy of a member of the household, and Appellant’s conviction is affirmed. State v. Pakhnyuk, N.W.2d , A17-0474, 2018 WL 313086 (Minn. Ct. App. Jan. 8, 2018).

VII. COMPETENCY

A. COMPETENCY DETERMINED BASED ON GREATER WEIGHT OF EVIDENCE, WITHOUT REGARD TO BURDEN OF PROOF: Appellant was charged with fourth-degree criminal sexual conduct and moved for competency and mental examinations. After examinations by two doctors, the district court found Appellant competent to stand trial. Minn. R. Crim. P. 20.01, subd. 5(f), requires the district court to determine whether “the greater weight of the evidence” supports a finding of competency. Appellant argues the district court applied a standard that shifted the burden to the defense by relying on the analysis of one doctor who shifted the burden to Appellant to produce some evidence of incompetence, instead of requiring the State to demonstrate his competence.
The Court of Appeals disagrees with Appellant, pointing out that neither the competency rule nor cases interpreting the rule include language that assigns to the State the burden of proving a defendant’s competence. The procedural rules do not assign a “burden of proof” in a competency proceeding to the State, defense, or court. “Rather, a district court determines competency… based on the greater weight of the evidence without regard to burden of proof.” The district court applied this standard in Appellant’s case. The record also shows that the greater weight of the evidence establishes that Appellant was competent to stand trial. State v. Curtis, __ N.W.2d, A17-0373, 2018 WL 414299 (Minn. Ct. App. Jan. 16, 2018).

VIII. FIFTH AMENDMENT

A. COMPELLING PROVISION OF FINGERPRINT TO UNLOCK SEIZED CELLPHONE NOT A TESTIMONIAL COMMUNICATION: Police seized Appellant’s cell phone of Appellant, a burglary suspect, and attempted to execute a warrant to search the phone, but were unable to bypass the fingerprint scanner security lock. Appellant refused to provide his fingerprint, but the district court ordered him to do so, and the Court of Appeals affirmed. At trial, incriminating evidence from Appellant’s cell phone was admitted, and the jury found him guilty. In this case of first impression, the Supreme Court is faced with determining whether the Fifth Amendment’s privilege against self-incrimination protects a person from being ordered to provide a fingerprint to unlock a seized cell phone. The Court holds that, because the act of providing a fingerprint to the police to unlock a cell phone elicits only physical evidence from the defendant’s body, and does not reveal the contents of his mind, there is no Fifth Amendment violation. The Fifth Amendment bars the State from compelling incriminating oral and physical testimonial communications from a defendant. The United States Supreme Court has drawn a distinction between compelled acts that elicit testimonial responses, such as producing documents as evidence, and compelled acts that make a suspect or accused the source of real or physical evidence, such as providing a blood sample to the police for an alcohol content analysis. The Court notes that providing a fingerprint both exhibits the body and produces documents (the contents of the phone) while communicating some degree of possession, control, and authentication of the phone’s contents. However, the Court determines that producing a fingerprint is more like exhibiting the body than producing documents, as it involves a display of the physical characteristics of the body, not of the mind, to the police, and is more like a “test” to gather physical characteristics, like a blood sample, voice exemplar, lineup, etc. Furthermore, Appellant’s participation in providing his fingerprint was irrelevant to whether his fingerprint actually unlocked the phone – whether his fingerprint unlocked the phone depended instead on whether the fingerprint scanner analyzed the physical characteristics of Appellant’s fingerprint and matched the characteristics of the fingerprint programmed to unlock the phone. State v. Diamond, N.W.2d , A15-2075, 2018 WL 443356 (Minn. Jan. 17, 2018).