July 2020

TRAFFIC VIOLATIONS

LAWFUL BASIS FOR A VIOLATION OF FAILURE TO MAKE A COMPLETE STOP BEFORE ENTERING INTERSECTION EXISTS WHEN A DRIVER DRIVES PAST STOP LINE OR STOP SIGN BEFORE COMING TO A COMPLETE STOP

Appellant was pulled over for failing to come to a complete stop before a white stop line at a stop sign. Based on Appellant’s lack of physical identification and his answers to the officer’s questions, the officer asked and was permitted to search Appellant’s vehicle. The officer found blank checks, a printer, a computer, and several identification cards for various individuals. Appellant was charged with forgery and giving a false name to a peace officer. The district court found the stop unlawful and suppressed the evidence seized from the vehicle, but the Court of Appeals reversed.

Section 169.30(b) requires every driver of a vehicle to “stop at a stop sign or at a clearly marked stop line before entering the intersection…” The question is whether the statute required Appellant to completely stop before the vehicle crossed the stop line or near the stop line.

The legislature defines “stop” in section 169.011, subd. 79, which, when applied to section 169.30(b), means a vehicle must make a complete cessation from movement “at” a stop sign or stop line. “At,” however, is not defined. The court looks to the dictionary definition of “at,” “expressing location or arrival in a particular place or position,” as well as the common usage of “stop at” in the context of traffic control. Stop lines and stop signs are signals specifying a precise place or position at which a driver must stop to maintain traffic control and safety. Thus, under the plain meaning of the statute, the court holds that section 169.30(b) is violated when the driver of a vehicle drives past the stop sign or stop line before coming to a complete stop.

The parties do not dispute, and the record demonstrates, that Appellant failed to bring his vehicle to a complete stop before driving his vehicle past the stop line and stop sign. Therefore, the officer’s traffic stop was lawful and the district court erred in suppressing evidence seized from Appellant’s vehicle. State v. Gibson, 945 N.W.2d 855 (Minn. July 8, 2020).

JUVENILE

DELINQUENCY ADJUDICATION OR FELONY OFFENSES LISTED IN MINN. STAT. § 624.712, SUBD. 5, ARE “FELONY CONVICTIONS” FOR DETERMINING IF AN OFFENSE IS “CRIME OF VIOLENCE”

As an adult, Appellant was charged with possession of a firearm by an ineligible person, based on a prior fifth-degree controlled substance possession juvenile delinquency adjudication. He pleaded guilty to the firearm offense. His post conviction petition, which was denied by both the district court and Court of Appeals, argues that the fifth-degree controlled substance juvenile delinquency adjudication does not qualify as a crime of violence, because a delinquency adjudication cannot be deemed a conviction of crime under Minn. Stat. § 260B.245.

Possession of a firearm by an ineligible person requires proof that the defendant “has been convicted of, or adjudicated delinquent… for committing… a crime of violence.” Minn. Stat. § 624.713, subd. 1(2). The definition of “crime of violence” includes felony convictions of chapter 152 (drugs, controlled substances). Minn. Stat. § 624.712, subd. 5. Section 260B.245, subd. 1(a), states that juvenile delinquency adjudications shall not “be deemed a conviction of crime.” However, section 260B.245, subd. 1(b), provides an exception, stating that persons adjudicated delinquent for crimes of violence, as defined in section 624.712, subd. 5, are not entitled to possess firearms. Reading these subsections together, the Minnesota Supreme Court concludes that a juvenile delinquency adjudication for felony-level offenses listed in section 624.712, subd. 5, may be deemed “felony convictions” and meet the statutory definition of crime of violence.

Appellant admitted he had been adjudicated delinquent for committing fifth-degree possession of a controlled substance, which is a felony-level offense listed in section 624.712, subd. 5. Thus, there was a sufficient factual basis for Appellant’s guilty plea to possession of a firearm by an ineligible person. Roberts v. State, 945 N.W.2d 850 (Minn. July 8, 2020).

FIREARMS

A MOTOR VEHICLE ON A PUBLIC HIGHWAY IS IN A “PUBLIC PLACE”

Police observed a vehicle swerving in and out of traffic on a public highway and pulled it over. The driver, Respondent, admitted to consuming alcohol and failed field sobriety tests, and was arrested for DWI. Respondent asked the officer to retrieve his wallet and keys from the vehicle, describing the phone as in the center console, next to his gun. The officer found the keys, wallet, and gun. Respondent was charged with DWI and carrying a pistol while under the influence of alcohol.

Minn. Stat. § 624.712, subd. 1, prohibits carrying a pistol on or about one’s clothes or person in a public place while under the influence of alcohol and/or controlled substances. The district court granted Respondent’s motion to dismiss for lack of probable cause, finding the center console of Respondent’s vehicle is not a “public place.”

The Court of Appeals previously held that “public place” in section 624.712, subd. 1, is ambiguous, and defined “public place” as “generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not.” State v. Grandishar, 765 N.W.2d 901, 903 (Minn. Ct. App. 2009).

The court finds that the proper focus of the analysis is not Respondent’s vehicle, but the public highway on which Respondent drove his vehicle, by looking to the “mischief to be remedied” by section 624.712, subd. 1, which is the danger to the public inherent in firearm possession while impaired. The court holds that, for purposes of section 624.712, subd. 1, a personal vehicle operated on a public highway is a mode of transportation and cannot be considered a private place. Thus, the district court erred in dismissing the charge against the Respondent of carrying a firearm in a public place while under the influence of alcohol. State v. Serbus, 947 N.W.2d 690 (Minn. Ct. App. July 13, 2020).

SEARCH AND SEIZURE

WARRANT MISIDENTIFYING PERSON TO BE SEARCHED DOES NOT LACK SUFFICIENT PARTICULARITY IF WARRANT AND SUPPORTING DOCUMENTS PROVIDE SUFFICIENT CORRECT IDENTIFYING INFORMATION, THERE IS NO REASONABLE PROBABILITY THE WRONG PERSON COULD BE SEARCHED, AND THE CORRECT PERSON WAS SEARCHED

Appellant collided with another vehicle on a highway, causing the death of the other vehicle’s driver and injuries to Appellant. Appellant denied drinking but admitted to smoking marijuana before the accident. Appellant was taken to a hospital while police obtained a warrant to search Appellant’s blood or urine. The detective who drafted the warrant did not have Appellant’s name and entered the name of the vehicle’s registered owner, Appellant’s father, into the warrant. The warrant also stated the person to be searched was the only occupant and driver of the vehicle, the driver admitted to smoking marijuana, and referenced the “attached affidavit.” The affidavit was from the sergeant on the scene who spoke with Appellant and correctly identified Appellant. A judge issued a warrant and it was taken to the hospital. The deputy at the hospital noticed the warrant incorrectly identified Appellant and the detective left to retrieve a corrected warrant. While the detective was doing so, the deputy obtained a urine sample from hospital staff and, shortly thereafter, a warrant correctly identifying Appellant was brought to the hospital. Testing of Appellant’s urine sample revealed the presence of marijuana. The district court denied Appellant’s motion to suppress the urine test results, finding the error in the warrant in effect at the time Appellant’s urine was collected did not invalidate the warrant, because it created no reasonable possibility the police would search the wrong person. Appellant was found guilty after a stipulated facts bench trial.

Search warrants must particularly describe the place to be searched, but errors in the description of the place to be searched do not necessarily invalidate a warrant. The description of the place to be searched must be “sufficient so that the executing officer can locate and identify the premises with reasonable effort with no reasonable probability that other premises might be mistakenly searched.” The court may consider the warrant, warrant application, supporting affidavits if they are expressly incorporated into and attached to the warrant, and the circumstances of the case, including the executing officer’s personal knowledge of the place to be searched and whether the correct place was actually searched.

Here, the wrong person was identified in the warrant, but the warrant and its supporting documents contained correct information pointing to Appellant. The officers at the hospital also knew who was to be searched and his location, and the correct person was, in fact, searched. Thus, “the warrant’s error presented no reasonable probability that the wrong person would be mistakenly searched.” The warrant identified the person to be searched with sufficient particularity, and the district court did not err in denying Appellant’s motion to suppress. State v. Wilde, 947 N.W.2d 473 (Minn. Ct. App. July 13, 2020).

CRIMINAL SEXUAL CONDUCT

ATTEMPTED THIRD-DEGREE CRIMINAL SEXUAL CONDUCT: DRIVING TO CHILD’S LOCATION, AND WALKING TOWARD CHILD’S HOUSE WITH SUPPLIES ARE ACTS BEYOND MERE PREPARATION

Appellant sent messages to a decoy profile of a 14-year-old boy created by police, including sexually explicit messages and photographs. Appellant and the decoy agreed to meet for sex. Appellant was arrested walking toward the decoy location, carrying a bag of “supplies” for the sexual encounter. He was convicted after a bench trial of attempted third-degree criminal sexual conduct, electronic solicitation of a child, and electronic distribution to a child of material, language, or communications relating to or describing sexual conduct.

The Supreme Court finds the evidence was sufficient to support Appellant’s attempt conviction. The attempt statute provides that “[w]hoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.” Minn. Stat. § 609.17, subd. 1. The parties disagree on the interpretation of “more than preparation for.” The court notes that the common and approved usage of “prepare” is “[t]o make ready beforehand for a specific purpose, as for an event or occasion.” Thus, the only reasonable interpretation of “more than preparation for” is that it excludes substantial steps that occur beforehand to make ready for the intended offense. The court rejects Appellant’s argument that the phrase requires the State to prove a substantial step occurred at the time and place of the intended crime, as the attempt statute makes no mention of a location requirement.

Here, Appellant intended to commit the offense, as his communications with the decoy showed. He took a substantial step toward the offense by arranging to meet the decoy and gathering supplies. He also moved beyond preparation by driving to the decoy’s location, arriving at the parking lot, and walking toward the decoy house carrying the bag of supplies he intended to use. Appellant’s conviction for attempted third-degree criminal sexual conduct is affirmed. State v. Degroot, 946 N.W.2d 354 (Minn. July 15, 2020).

ATTEMPTED THIRD-DEGREE CRIMINAL SEXUAL CONDUCT: WALKING UP TO CHILD’S HOUSE AND KNOCKING ON DOOR ARE ACTS BEYOND MERE PREPARATION

Appellant sent messages and explicit photographs to a fictitious 14-year-old, “JT,” asked JT for explicit photographs, and made an agreement to meet to have sex with JT. Appellant drove to a house he believed was JT’s home, knocked on the door, and was arrested when police answered. He was charged with attempted third-degree criminal sexual conduct. After a bench trial, he was convicted, and the court of appeals affirmed his conviction. Appellant argues the State failed to prove he committed “a substantial step toward, and more than preparation for” the commission of third-degree criminal sexual conduct.

First, the Supreme Court rejects Appellant’s argument that, “while a sexual act on the part of the defendant is not required,” an attempted sex offense “begins with the initial attack.” The court notes that, for attempt cases, while the substantial step must be strongly corroborative of the actor’s criminal purpose, it need not objectively reveal the nature of the intended crime.

Next, the court finds the State provided sufficient evidence to support Appellant’s conviction. It is undisputed that Appellant formed an intent to commit third-degree criminal sexual conduct. He took a substantial step toward the offense by arranging to meet JT, and he moved beyond preparation when he walked up to the house and knocked on the door. Appellant’s conviction is affirmed. State v. Wilkie, 946 N.W.2d 348 (Minn. July 15, 2020).

VICTIM MAY BE “MENTALLY INCAPACITATED” WHEN UNABLE TO GIVE CONSENT BECAUSE THEY ARE VOLUNTARILY UNDER THE INFLUENCE OF ALCOHOL OR DRUGS

Appellant met the victim, J.S., outside of a bar. J.S. consumed multiple alcoholic beverages and Vicodin earlier that night and was heavily intoxicated. Appellant brought J.S. to a residence, where they both eventually “passed out” together on a couch. J.S. later woke up to Appellant sexually penetrating her. J.S. told Appellant “no,” and then lost consciousness again. Appellant was charged with multiple counts of criminal sexual conduct, including two that involved sexual activity with a person when the actor knows or has reason to know the victim is mentally impaired, mentally incapacitated, or physically helpless. The district court instructed the jury J.S. could be “mentally incapacitated” even if she voluntarily consumed the alcohol and narcotics. The jury found Appellant guilty of third-degree criminal sexual conduct involving a mentally incapacitated or physically helpless person.

A person is “mentally incapacitated” for purposes of the criminal sexual conduct statute when “under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement.” Minn. Stat. § 609.341, subd. 7. The court of appeals finds the modifier “administered to that person without the person’s agreement” applies only to “any other substance.” The court rejects Appellant’s argument that the modifier applies to alcohol, noting that alcohol is usually consumed through volitional acts of drinking and swallowing. The statute also focuses on the ability or inability of the victim to consent, not the manner in which the victim becomes unable to consent. It does not require that the defendant cause the victim’s mental incapacity or even have knowledge of how the incapacitation arose.

Whether voluntarily or involuntarily intoxicated, an incapacitated person lacks the judgment or ability to give a reasoned consent to sexual contact. It is the ability to give reasoned consent that is the focus of the criminal sexual conduct statutes. Thus, the court concludes that section 609.341, subd. 7, provides that a victim may become mentally incapacitated if they are under the influence of (1) alcohol, a narcotic, or anesthetic, however consumed, or alternatively (2) any other substance, administered to that person without the person’s agreement. The court ultimately affirms Appellant’s conviction. State v. Khalil, 948 N.W.2d 156 (Minn. Ct. App. July 27, 2020), review granted (Oct. 1, 2020).

FIRST AMENDMENT

CRIMINAL COERCION STATUTE VIOLATES THE FIRST AMENDMENT

After his girlfriend, J.C., ended their relationship, Respondent made threatening calls to J.C.’s father, threatening to release a video of J.C. talking about smoking marijuana to J.C.’s employer, J.C.’s professional licensing board, and the Department of Human Services, unless Respondent was paid $25,000. Respondent was charged with attempted coercion, but the district court granted Respondent’s motion to dismiss, finding the coercion statute violates the First Amendment. The court of appeals affirmed.

The subdivision under which Respondent was charged, Minn. Stat. § 609.27, subd. 1(4), provides that anyone who “orally or in writing makes… a threat to expose a secret or deformity, publish a defamatory statement, or otherwise expose any person to disgrace or ridicule,” and who “thereby causes another against the other’s will to do any act or forebear doing a lawful act is guilty of coercion.”

The Supreme Court first examines what subdivision 1(4) covers, finding it a content-based regulation of speech, because whether a person may be prosecuted under the subdivision depends entirely on what the person says. Subdivision 1(4) has a broad sweep, as it covers “threats,” not only “true threats,” which are unprotected. It also criminalizes a wide range of communications on a variety of subject matters, and criminalizes communications containing threats that touch upon matters of public concern. Also, subdivision 1(4) criminalizes speech whether the recipient of the threat takes – or forebears from – any action in response. Section 609.27, subd. 1, requires that the threat cause someone to act or forebear from doing a lawful act. However, section 609.275 provides that any threat prohibited by section 609.27, subd. 1, that “fails to cause the intended act or forbearance” is punishable as an attempt to coerce. Lastly, subdivision 1(4) does not require that the recipient of the threat suffer any tangible harm or injury, or that the maker of the threat intend any injury or loss to the recipient.

Second, the court rejects the State’s argument that section 609.28, subd. 1(4), is limited to regulated unprotected “fighting words.” Subdivision 1(4) criminalizes much more, prohibiting threats that do not contain “personally abusive epithets” or are not “inherently likely to provoke violent reaction.” The court also rejects the dissent’s argument that the definition of “threat” is so narrow that it includes only unprotected “speech integral to criminal conduct.”

Next, the court determines that subdivision 1(4) plainly criminalizes a substantial amount of protected speech, giving numerous examples. Thus, subdivision 1(4) is unconstitutional on its face.

Lastly, the court finds subdivision 1(4), and the related attempt statute, cannot be saved with a narrowing construction. Therefore, the court invalidates subdivision 1(4) as violating the First Amendment. State v. Jorgenson, 946 N.W.2d 596 (Minn. July 22, 2020).

PREDATORY OFFENDER REGISTRATION

PERSON CHARGED PRIOR TO STATUTORY AMENDMENTS IS REQUIRED TO REGISTER ONLY IF SUBJECT TO REGISTRATION REQUIREMENT ON OR AFTER AMENDMENTS’ EFFECTIVE DATE

Appellant was charged in 2000 with aiding and abetting fourth-degree criminal sexual conduct and disorderly conduct. He pleaded guilty to disorderly conduct and the aiding and abetting charge was dismissed in 2001. At that time, Minn. Stat. § 243.166 did not require Appellant to register as a predatory offender. However, section 243.166 was amended in 2005 to require registration if a person is charged with aiding and abetting criminal sexual conduct and is “convicted of… that offense or another offense arising out of the same set of circumstances.” The amendment notes it applies to persons subject to registration on or after the amendment’s enactment. In 2017, Appellant was released from prison in an unrelated case and was told he needed to register as a predatory offender. He did so, but was later charged with failing to register after moving to North Dakota without updating his registration. He pleaded guilty but appealed his conviction.

The court of appeals agrees with Appellant that his conviction must be reversed. Appellant was not subject to the registration requirement at the time of the 2005 amendment to section 243.166. Under the amendment’s plain language, his 2000 charge of aiding and abetting fourth-degree criminal sexual conduct did not require him to register as a predatory offender. The legislature could have but chose not to set the effective date of the amendment to include someone in Appellant’s position. As Appellant pleaded guilty to an offense for which he could not properly be convicted of at trial, the case is reversed and remanded to allow Appellant to withdraw his guilty plea. State v. Davenport, 948 N.W.2d 176 (Minn. Ct. App. July 27, 2020).

TRAFFIC OFFENSES

FAILURE TO YIELD TO AN EMERGENCY VEHICLE REQUIRES PROOF THE EMERGENCY VEHICLE USED ITS SIREN

Appellant was cited with petty misdemeanor failing to yield to an emergency vehicle after police observed Appellant’s van fail to slow and pull over to let an ambulance with flashing emergency lights pass. The district court found Appellant guilty of both offenses, and Appellant appealed to challenge his failing to yield to an emergency vehicle conviction.

The failing to yield statute plainly defines when a driver must yield to an emergency vehicle: when the driver is approached by an authorized emergency vehicle, the emergency vehicle displays a visible red light, and the emergency vehicle emits a siren. Here, there is insufficient evidence to support the district court’s finding that the ambulance emitted an audible siren. Neither direct nor circumstantial evidence proved the ambulance’s siren was used. Thus, Appellant’s conviction is reversed. State v. Li, 948 N.W.2d 151 (Minn. Ct. App. July 27, 2020).

MALICIOUS PUNISHMENT

STATE MUST PROVE USE OF UNREASONABLE FORCE, BUT NOT THAT FORCE OCCURRED IN THE COURSE OF PUNISHMENT

Appellant had 4-year-old J.V.R. in her home for day care. Her property included a fenced-in yard with monkey bars and a picnic table. On one particular day, the table sat on top of the monkey bars, so Appellant could mow the lawn. J.V.R. tried to knock the table off the monkey bars twice and was “sassing” Appellant when she told him to stop. When J.V.R. tried to go to the monkey bars a third time, Appellant knelt in the grass, held onto J.V.R.’s arms with her hands and told him he could not use the monkey bars. Her grip left marks on J.V.R.’s arms. When his aunt picked him up later, Appellant told her about the marks on J.V.R.’s arms. Appellant was charged with malicious punishment of a child – less than substantial bodily harm. A jury found her guilty and she appealed, arguing the State did not prove he used unreasonable force in the course of punishing J.V.R. The court of appeals affirmed Appellant’s conviction.

The Supreme Court holds Minn. Stat. § 609.377 does not require the State to prove that a defendant’s use of unreasonable force occurred in the course of punishment. Malicious punishment of a child occurs when “[a] parent, legal guardian, or caretaker who, by an intentional act or series of intentional acts with respect to a child, evidences unreasonable force or cruel discipline that is excessive under the circumstances…” Minn. Stat. § 609.377, subd. 1. Subdivisions 2-6 address when the offense is a gross misdemeanor or felony and refer to the level of “punishment.” Appellant argues, therefore, that the acts described in subdivision 1 must occur “in the course of punishment.”

However, the lengthy, detailed definition of “malicious punishment” in subdivision 1 plainly does not state that the defendant’s acts must be done in the course of punishment. The pattern jury instruction for section 609.377 states that “[u]nreasonable force is such force used in the course of punishment as would appear to a reasonable person to be excessive under the circumstances.” The court rejects this instruction, as it would lead to the court adding “in the course of punishment” into the plain language of section 609.377. State v. Altepeter, 946 N.W.2d 871 (Minn. July 29, 2020).

PROCEDURE

UPON A MOTION TO QUASH A SUBPOENA FOR VICTIM’S CELL PHONE, COURT MUST DETERMINE WHETHER COMPLIANCE WITH THE SUBPOENA WOULD BE UNREASONABLE UNDER THE CIRCUMSTANCES

Yildirim was charged with third-degree criminal sexual conduct for an alleged assault against B.H. When reporting the assault, B.H. told police she recalled sending a text message before the assault, used her phone to take pictures of the location of the assault, and communicated with Yildirim about the assault on Instagram. B.H. gave her phone to police, who extracted evidence and returned the phone to her. Yildirim moved to compel the State to produce B.H.’s cell phone for independent forensic inspection, but B.H. would not turn her phone over. Yildirim then moved the court for an order to subpoena B.H.’s cell phone under Minn. R. Crim. P. 22.01, subd. 2(c), which the court granted. B.H.’s subsequent motion to quash the subpoena was denied, as was her motion to stay the district court proceedings pending her appeal. B.H. then filed a petition for writ of prohibition with the court of appeals, but court of appeals found the district court did not abuse its discretion by finding Yildirim’s right to review potentially exculpatory evidence outweighed B.H.’s privacy concerns, which could be protected by an in camera review of her phone.

The parties do not contest that two of three elements for a writ of prohibition are met here: an inferior court must be about to exercise judicial power and the exercise of such power will result in injury for which there is no adequate remedy. At issue is whether the district court’s exercise of power in denying B.H.’s motion to quash was unauthorized by law.

First, the Supreme Court determines that, when a district court is faced with a victim’s motion to quash or modify a subpoena sought under Minn. R. Crim. P. 22.01, subd. 2(c), the court must make a determination whether compliance is unreasonable given the totality of the circumstances. These circumstances include, but are not limited to: the relevance and materiality of the records sought; the specific need of the defendant for the records and whether they are otherwise procurable; the admissibility or usefulness of the records, including whether they can be used for impeachment of a material witness; whether the request is made in good faith and is not a fishing expedition; and the burden on the party producing the information, including the victim’s privacy interests.

Second, the court finds the district court’s denial of B.H.’s motion to quash was unauthorized by law. The district court ordered B.H. to turn her phone over to a defense expert or counsel to review all information on her phone from the relevant time period and extract potentially relevant data to give to the court for in camera review. No law authorizes such access to a victim’s confidential information before the court conducts an in camera review. In addition, the district court did not adequately consider the reasonableness of requiring B.H. to comply with the subpoena. The court grants B.H.’s petition for a writ of prohibition. In re B.H., 946 N.W.2d 860 (Minn. July 29, 2020).