July 2019

I. DOMESTIC ASSAULT

A. FOR FELONY ENHANCEMENT, MINN. STAT. § 609.2242, SUBD. 4, REQUIRES TWO QUALIFYING PRIOR CONVICTIONS, NOT SENTENCES: In June 2009, Appellant was convicted of third-degree assault and domestic abuse by violation of an order for protection for assaulting his estranged wife, D.L.D., and was sentenced on the assault conviction. In March 2018, Appellant was charged with, among two other offenses, two domestic assault offenses after a confrontation with M.R.D. and her daughter. The domestic assault offenses were charged as felonies under Minn. Stat. § 609.2242, subd. 4, because they were committed within ten years of the June 2009 convictions. The district court granted Appellant’s motion to strike the domestic assault charges, concluding that, to comply with Minn. Stat. § 609.035’s prohibition of multiple punishments for the same course of conduct, only convictions for which Appellant was sentenced may be used for enhancement under Minn. Stat. § 609.2242, subd. 4. The State appealed and the Court of Appeals reversed.

On Appellant’s petition for review, the Supreme Court affirms the Court of Appeals. Minn. Stat. § 609.2242, subd. 4, enhances a domestic assault offense from a misdemeanor to a felony if the domestic assault offense was committed “within ten years of the first of any combination of two or more previously qualified domestic violence-related offense convictions” (emphasis added). The plain language of the statute refers to convictions, not sentences. The record shows Appellant was convicted of third-degree assault on December 3, 2010, and then convicted of violating an order for protection. The fact that both convictions occurred on the same day is irrelevant. These two qualifying convictions occurred within ten years of his March 2018 domestic abuse charges, and, thus, the 2018 charges qualify for enhancement under Minn. Stat. § 609.2242, subd. 4. State v. Defatte, 928 N.W.2d 338 (Minn. May 22, 2019).

II. SENTENCING

A. CREDIT FOR TIME IN RED LAKE NATION CUSTODY PERMITTED ONLY IF CUSTODY WAS SOLELY IN CONNECTION WITH MINNESOTA OFFENSE: Appellant received a stay of imposition and was placed on probation for 20 years following a guilty plea to a third-degree controlled substance crime in 2011. In 2017, she was convicted of two gross misdemeanor offenses on the Red Lake Reservation and was released pending sentencing. The stay of imposition of her 2011 sentence was revoked for failing to remain law abiding, and the court ordered that Appellant be taken into custody. She was taken into custody by Beltrami County after remaining in Red Lake custody for 21 days. Appellant thereafter requested execution of her 2011 sentence and custody credit for the 21 days she spent in Red Lake custody. The district court denied her request for credit for the time she spent in Red Lake detention, and the Court of Appeals affirmed.

Under Minn. R. Crim. P. 27.03, subd. 4(B), a defendant is entitled to custody credit for time spent in custody “in connection with the offense or behavioral incident being sentenced.” To receive credit for time spent in another jurisdiction’s custody, the Minnesota offense must be the sole reason for the custody. Although the Red Lake Nation is within the borders of Minnesota, it is an independent sovereign nation, and thus the rule for determining interjurisdictional, not intrajurisdictional, custody credit applies. Appellant was in Red Lake custody in connection with her Red Lake convictions and, thus, the sole reason for her detention could not be her Minnesota conviction. State v. Roy, 928 N.W.2d 341 (Minn. May 22, 2019).

B. DRIVE-BY SHOOTING AT MOTOR VEHICLE DOES NOT CONSTITUTE OFFFENSE AGAINST EACH OCCUPANT: During an argument with C.L.G., Appellant fired a handgun in C.L.G.’s direction, but hit the vehicle next to C.L.G., containing two adults and a child. Appellant pleaded guilty to drive-by shooting, second-degree assault, and reckless discharge of a firearm. He was sentenced to 48 months for the drive-by shooting and 36 months for the assault. On appeal, the question is whether the drive-by shooting and assault offenses arose out of a single behavioral incident and, therefore, whether the district court erroneously imposed multiple sentences.

Minn. Stat. § 609.035, subd. 1, provides that “if a person’s conduct constitutes more than one offense…the person may be punished for only one of the offenses.” A defendant should be punished for the most serious of the offenses arising out of a single behavioral incident. However, Minn. Stat. § 609.035, subd. 1, also includes a multiple victim rule: if a crime affects multiple victims, a court may impose more than one sentence for convictions arising out of a single behavioral incident.

The Court of Appeals applies State v. Ferguson, 808 N.W.2d 586 (Minn. 2012), in which the Supreme Court approved multiple sentences for eight counts of aiding and abetting drive-by shooting and one count of drive-by shooting in connection with a drive-by shooting of a building occupied by eight people. The drive-by shooting statute makes no distinction between the drive-by shooting of an occupied building or a motor vehicle – both are premised on the object of the shooting, the occupied building or motor vehicle, not the occupants. Therefore, the court holds that the offense of drive-by shooting of an occupied motor vehicle is not an offense against each of the vehicle’s occupants. As such, the district court did not err in imposing sentences for Appellant’s drive-by shooting and assault convictions, even if both arose out of a single behavioral incident. State v. Branch, 930 N.W.2d 455 (Minn. Ct. App. June 10, 2019)

III. CIRCUMSTANTIAL EVIDENCE

A. UNCONTROVERTED CIRCUMSTANCES FROM A STATE WITNESS THAT DO NOT NECESSARILY CONTRADICT THE VERDICT CONSTITUTE “CIRCUMSTANCES PROVED” BUT ABSENCE OF EVIDENCE DOES NOT CONSTITUTE A “CIRCUMSTANCE PROVED”: Appellant was convicted of, among other offenses, first-degree controlled substance crime for possessing methamphetamine, but he argues there was insufficient circumstantial evidence to prove beyond a reasonable doubt he knowingly possessed methamphetamine. Appellant was pulled over for swerving and detained when police discovered he did not have a valid driver’s license and was not the registered owner of the vehicle. The sole passenger, J.S., had a history of drug and weapon convictions and was a known methamphetamine user. J.S. was left in the vehicle, unmonitored, for 30-60 seconds while Appellant was secured. When Appellant was in the squad, the officer removed J.S. from the vehicle, searched her and her purse, finding nothing illegal, and conducted an inventory search of the vehicle. The inventory search revealed a duffle bag on the floor of the truck, within reach of the front seats. The bag contained a bulletproof vest, a casino card with Appellant’s name, and a glove in which a plastic bag of methamphetamine was found. Additional methamphetamine was also found in Appellant’s wallet in the front console.

The State sought to prove Appellant constructively possessed methamphetamine through circumstantial evidence. To analyze the sufficiency of this evidence, the court identifies the circumstances proved, deferring to the jury’s acceptance of proof of these circumstances and rejection of evidence that convicted with evidence proved by the State, and, then, the court determines whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt.

The State argues that J.S.’s criminal history and methamphetamine use cannot be considered, as they are inconsistent with the jury’s verdict. However, these were uncontroverted facts established by a state witness, and the Court of Appeals finds that it is inconsistent with neither a verdict of guilty nor a verdict of not guilty. The State also argues against considering the fact that the State did not produce any evidence of Appellant’s DNA or fingerprints on the bag of methamphetamine. There was no testimony at all regarding DNA or fingerprint testing. The Court of Appeals holds that absence of evidence in the record regarding a certain circumstances does not constitute a circumstance proved.

The court concludes that the circumstances proved, particularly that the duffle bag contained a card with Appellant’s name and the additional methamphetamine found in Appellant’s wallet, tie the methamphetamine in the duffle bag to Appellant – that is, the circumstances proved form a complete chain which, viewed in light of the evidence as a whole, leads so directly to Appellant’s guilt as to exclude beyond a reasonable doubt any reasonable inference except that of guilt. State v. German, 929 N.W.2d 466 (Minn. Ct. App. May 28, 2019).

IV. PERMIT TO CARRY

A. NO DISQUALIFYING CONVICTION FOR CRIME OF DOMESTIC VIOLENCE IF CONVICTION EXPUNGED UNDER COURT’S INHERENT AUTHORITY, UNLESS ORDER EXPRESSLY PROHIBITS POSSESSION OF FIREARMS: Appellant’s application for a permit to carry a pistol was denied by the county sheriff due to his 1996 domestic assault conviction. That conviction was expunged by the district court in 2007, solely under its inherent authority. Appellant petitioned the district court for a writ of mandamus to compel the sheriff to issue the permit, but his petition was denied. The district court concluded Appellant was disqualified from possessing a firearm because his domestic assault conviction was not expunged under 18 U.S.C. § 921(a)(33)(B)(ii).

Under Minn. Stat. § 624.714, subd. 2(b)(4)(ix), a sheriff is not required to issue a carry permit to a person prohibited from possessing a firearm under federal law. 18 U.S.C. § 922(g)(9) prohibits any person convicted in any court of a misdemeanor crime of domestic violence from possessing a firearm. However, under 18 U.S.C. § 921(a)(33)(B)(ii), a person is not considered convicted of a misdemeanor crime of violence if the conviction has been expunged, unless the expungement “expressly provides that the person may not ship, transport, possess, or receive firearms.”

In 2007, the district court ordered the judicial records relating to Appellant’s conviction to “be expunged,” directed that the case file be “seal[ed],” and directed the county corrections department to “seal” its records relating to Appellant’s arrest and court proceedings. Federal law does not require that an expungement be statutory or result in the sealing of records in every branch of government. Thus, the Court of Appeals concludes the 2007 expungement order meets the plain meaning of “expunged” in 18 U.S.C. § 921(a)(3)(B)(ii). Appellant’s domestic assault conviction was expunged and, therefore, he is not prohibited from possessing a firearm or disqualified from holding a carry permit. Reversed and remanded. Bergman v. Caulk, 931 N.W.2d 114 (Minn. Ct. App. June 3, 2019).

V. CONFRONTATION CLAUSE

A. USE OF INTERPRETER DOES NOT IMPLICATE CONFRONTATION CLAUSE OR HEARSAY RULES: Appellant agreed to give a recorded statement to police during a criminal sexual conduct investigation. Appellant’s first and second languages are Mam and Spanish. A Spanish translator was used via telephone to translate the officer’s questions and Appellant’s answers. During the interrogation, Appellant admitted to having sexual intercourse with a child under 13. Appellant was charged with charged with first-degree criminal sexual conduct. Prior to trial, he objected to the recording of his translated statement on Confrontation Clause and hearsay grounds because the interpreter was not present to testify. The district court admitted the video recording of and the officer’s testimony regarding the statement at trial, and Appellant was convicted. The Court of Appeals affirmed the district court’s conclusion that admission of the translated statements did not violate the Confrontation Clause or hearsay rules.

The Supreme Court concludes that the use of a foreign language interpreter to convert Appellant’s statements from Spanish to English does not implicate the Confrontation Clause. Although the facts of this case are quite different from those in Crawford, in that the statements at issue here were made by Appellant himself and translated by an interpreter, rather than made by a third party, the bedrock principle of Crawford still applies – that the primary objective of the Confrontation Clause is to regulate the admission of testimonial hearsay by witnesses against the defendant.

An interpreter is merely the vehicle for conversion or translation of language. An interpreter does not add content to a declarant’s statement. Thus, the act of processing the defendant’s statement from one language to another does not transform the interpreter into a witness against the defendant. The translated statement is the original declarant’s statement, not the translator’s. The court notes that the proper method of challenging a translation’s accuracy, completeness, or authenticity is a foundation objection.

Appellant’s hearsay challenge also fails. Appellant was the declarant of the statements in question, and the statements were offered by the State against Appellant. Therefore, under Minn. R. Evid. 801(d)(2)(A), the statements are not hearsay. State v. Lopez-Ramos, 929 N.W.2d 414 (Minn. June 12, 2019).

VII. CRIMINAL PROCEDURE

A. RULE 9.01, SUBDS. 1-1a, DOES NOT AUTHORIZE INSPECTION OF CRIME SCENE IN THIRD PARTY’S CONTROL: Appellant was charged with first-degree criminal sexual conduct and domestic assault by strangulation after a violent confrontation between Appellant and his wife. A DANCO prevented Appellant from entering the house he shared with his wife, where the confrontation occurred. The district court denied Appellant’s requests to allow his attorney and investigator to enter the home to inspect and photograph the crime scene. Appellant was found guilty after a jury trial. The Court of Appeals affirmed Appellant’s convictions, finding that, although the district court abused its discretion when it concluded that the defense was not required to have reasonable access to the crime scene, Appellant was not prejudiced by the error.

The first question the Supreme Court addresses is whether Rule 9.01, subdivisions 1-1a, of the Minnesota Rules of Criminal Procedure requires the State to permit the defense to inspect a crime scene that is in a third party’s control. Rule 9.01, subdivisions 1-1a, requires the State to allow the defense access to all matters within the prosecutor’s possession and control that relate to the case. The State must also disclose the location of buildings and places that relate to the case and allow the defense to inspect and photograph any object, place, or building required to be disclosed.

So, while the State must disclose the location of the crime scene, the plain language of the rule does not require the State to allow inspection of a crime scene not within the prosecution’s possession or control. To conclude otherwise would require the State to do something not within its power and would interfere with the property owner or possessor’s rights. The Court overrules State v. Michael Gary Lee, 461 N.W.2d 245 (Minn. Ct. App. 1990), which it finds inconsistent with the plain language of the current version of Rule 9.01.In this case, Appellant’s wife controlled the crime scene, so the district court did not abuse its discretion by denying Appellant’s motions to inspect the crime scene.

The court also addresses Appellant’s argument that the district court’s denial of his motions violated his rights to due process and effective assistance of counsel. The court does not decide whether there exists a constitutional right to inspect a crime scene, because it concludes that, even if there is such a right, any error in denying Appellant’s motions was harmless, given the very strong evidence of Appellant’s guilt, very little of which depended on an inspection of the crime scene. State v. Lee, 929 N.W.2d 432 (Minn. June 19, 2019).

VIII. FOURTH AMENDMENT

A. SEARCH OF RENTED ROOM INVALID ONLY IF OFFICERS KNEW OR REASONABLY SHOULD HAVE KNOWN IT WAS IN MULTIPLE-OCCUPANCY HOUSE: Police obtained a search warrant for a home in St. Peter, which they believed was a single-family home. When executing the warrant, police made contact with D.H.J., the home’s registered owner. The home was not registered as a rental unit. D.H.J. told officers another person, Appellant, was in the house, but not that he lived there. Police found Appellant upstairs behind a partially closed bedroom door that had a padlock on it. There was no signage or other indicators that the house contained rental units. In Appellant’s room, police found drug paraphernalia, guns, ammunition, and three homemade firearm suppressors. Appellant was charged with drug offenses and unlawful possession of a firearm suppressor. After a stipulated facts trial, Appellant was convicted of the firearm suppressor offense.

The general rule regarding searches of multiple occupancy buildings is that a search is invalid unless the warrant describes the particular unit to be searched with sufficient definiteness. However, this rule is applied to apartment buildings, but not “community occupation,” where two or more people occupy common living quarters but have separate bedrooms. The question here is what if police are unaware when applying for the warrant and conducting the search that another person lives in the building?

The Court of Appeals holds “that the validity of the search of a rented room, pursuant to a warrant authorizing the search of the entire house, depends on whether officers reasonable knew or should have known that it was a multiple-occupancy building at the time of the search.” Here, the record shows that from outward appearances, this was a single-family residence. Inside, there were no indicators of private residences. Appellant’s room had a lock on the door, but that is not determinative. Under the totality of the circumstances, the court finds there were insufficient indicators to objectively notify police at the time of the search that it was a multiple-occupancy residence. Thus, the search did not exceed the scope of the search warrant. State v. Marsh, A18-1093, 2019 WL 2571677 (Minn. Ct. App. June 24, 2019).

IX. FIRST AMENDMENT

A. STALKING-BY-MAIL STATUTE VIOLATES FIRST AMENDMENT, BUT MAIL-HARASSMENT STATUTE IS SUBJECT TO NARROWING CONSTRUCTION: The juvenile court and Court of Appeals held that the stalking-by-mail, Minn. Stat. § 609.749, subd. 2(6), and mail-harassment, Minn. Stat. § 609.795, subd. 1(3), statutes are both constitutional under the First Amendment. Charges under these statutes arose against Appellant after he and two friends posted a number of cruel and egregious insults about a classmate on Twitter, which made the classmate extremely upset, fearful, and suicidal. After trial, Appellant was adjudicated delinquent. The Supreme Court finds both statutes violate the First Amendment as facially overbroad, but finds that the mail-harassment statute is reasonably subject to a narrowing construction.

Minn. Stat. § 609.749, subd. 2(6), provides that a person stalks another if they “repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, messages, packages, through assistive devices for people with vision impairments or hearing loss, or any communications made through any available technologies or other objects.” Stalking is engaging “in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim, regardless of the relationship between the actor and victim.” Minn. Stat. § 609.749, subd. 1.

The Supreme Court finds Minn. Stat. § 609.749, subd. 2(6), overbroad, because it criminalizes mailing or delivery of any form of communication an actor directs more than once at a specific person which the actor knows or has reason to know would cause, after considering the victim’s specific circumstances, that person to feel frightened, threatened, oppressed, persecuted, or intimidated, and the victim subjectively feels that way. Even though the statute may proscribe some unprotected speech, the court concludes the statute prohibits a substantial amount of constitutionally protected speech compared to the unprotected speech and conduct the statute reaches.

The court points to a number of examples of clearly protected speech and expressive conduct the statute would criminalize, as well as the expansiveness of many elements of the crime. Even negligent conduct is reached. The statute focuses primarily on speech and expressive conduct (and even includes “any communication” within its scope), and the statute describes the actus reus with several broad, unqualified terms (frighten, threaten, oppress, persecute, intimidate). The court contrasts Minnesota’s statute with the federal stalking statute, which requires a more specific and onerous “malicious intent,” requires “substantial” harm to the victim, and reaches far more unprotected speech and conduct than Minnesota’s statute.

Lastly, the court concludes that the stalking-by-mail statute is not subject to a narrowing construction, as any narrowing constructions are inconsistent with the legislature’s intent to have a low mens rea standard for this offense. As facially overbroad and not reasonably subject to a narrowing construction, Minn. Stat. § 609.749, subd. 2(6), violates the First Amendment.

As to the mail-harassment statute, the court also finds it overbroad. Minn. Stat. § 609.795, subd. 1(3), makes the following act a misdemeanor: “with the intent to abuse, disturb, or cause distress, repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, or packages.” The statute is overbroad because it criminalizes conduct closely connected to expressive activity, by focusing on letters, telegrams, and packages. Also, although it includes a specific intent requirement, the range of the type of harm the actor must cause (abuse, disturb, or cause distress), is great and there is no requirement that the victim actually suffer any harm.

However, unlike Minn. Stat. § 609.749, subd. 2(6), the constitutional defect in Minn. Stat. § 609.795, subd. 1(3), can be remedied with a narrowing construction. The court finds two types of potential harms too broad and unlimited in the speech and conduct they reach: “disturb” and “cause distress.” Eliminating “disturb” and “cause distress” still gives the statute the effect intended by the legislature while sufficiently narrowing the statute. Requiring only an “intent to abuse” reaches a more specific type of conduct and more substantial injury.

Appellant’s adjudications are reversed and the case is remanded to the juvenile court for consideration under the newly-narrowed mail-harassment statute. Matter of Welfare of A.J.B., 929 N.W.2d 840 (Minn. June 19, 2019).

X. DWI

A. DRIVER’S LICENSE REVOCATION IS “PRESENT” FOR DWI ENHANCEMENT UPON DRIVER’S RECEIPT OF NOTICE OF REVOCATION: Appellant was arrested for DWI on October 2, 2016, and December 18, 2016. A week after his October arrest, Appellant was notified that his driver’s license was revoked, and the revocation was sustained in April 2017, after he waived judicial review. For his December DWI arrest, Appellant was charged with second-degree test refusal and third-degree DWI in August 2017, after waiving judicial review on the October revocation. Both charges were enhanced due to Appellant’s October license revocation. Appellant moved to dismiss both counts, arguing there was insufficient evidence to prove the enhancement of the offenses and that using the October license revocation as an aggravating factor to support the December charges violated due process. The district court denied Appellant’s motion. After a stipulated facts trial, the court found Appellant guilty on both counts.

The issue on appeal is whether Appellant’s October driver’s license revocation was “present” when he committed the December DWI. Second-degree test refusal requires proof that the defendant refused a chemical test and that “one aggravating factor was present when the violation was committed.” Minn. Stat. § 169A.25, subd. 1(b).

The Court of Appeals holds that a prior driver’s license revocation is “present” as an aggravating factor to enhance a subsequent DWI after a driver receives notice of the prior driver’s license revocation. A driver’s license revocation is “present” when it becomes effective, and Minn. Stat. § 169A.52, subd. 6, makes clear that a revocation becomes effective when a driver is notified of the revocation. It is undisputed that Appellant’s driver’s license was revoked for one year on October 9, 2016, and that he received notice of the revocation. Thus, the revocation was “present” at the time he committed the December DWI.

Appellant cites State v. Wiltgen, 737 N.W.2d 561 (Minn. 2007), in which the Supreme Court read the statutory definition of prior impaired driving-related loss of license to “require that judicial review be completed” before the state can use a license revocation as an aggravating factor in a subsequent DWI charge. However, the Court of Appeals determines that Wiltgen did not alter the elements of an enhanced DWI offense, and only modified criminal procedure; or when the charge can be made.

Appellant also argues that he was not afforded due process because the State used his October license revocation as an aggravating factor, even though it was unreviewed at the time he committed the December DWI. Appellant again relies on Wiltgen, which held that the potential prejudice to the defendant “from the use of an unreviewed administrative revocation to enhance a subsequent DWI rises to the level of a violation of [the defendant’s] right to procedural due process.” However, in a footnote, the Supreme Court noted this problem could be avoided by delaying the issuance of a second-degree DWI complaint until after an implied consent hearing is conducted and the revocation sustained (or charge third-degree DWI before the hearing and amend the complaint to add second-degree DWI after the hearing). That is exactly what the State did here. State v. Anderson, A18-1491, 2019 WL 2495520 (Minn. Ct. App. June 17, 2019).