July 2024

IMPLIED CONSENT: DETERMINATION AS TO WHETHER DRIVER PROVED PRESCRIPTION DRUG DEFENSE IS REVIEWED FOR ABUSE OF DISCRETION

Petitioner was arrested for driving while impaired and transported to the hospital for a blood draw. A trooper obtained a warrant for a blood test and advised Petitioner that “refusal to take a test was a crime.” After a test of Petitioner’s blood revealed marijuana and amphetamines, her driver’s license was revoked. At an evidentiary hearing, the court received evidence regarding Petitioner’s prescription for Adderall, an amphetamine. The district court rescinded Petitioner’s driver’s license revocation, finding that Petitioner did not prove the affirmative prescription drug defense but that the implied consent advisory was inadequate because it referenced only blood tests and not urine tests. The Commissioner of Public Safety and Petitioner both appealed.

The Court of Appeals first finds that the implied consent advisory was adequate. Nash v. Comm’r Pub. Safety, 4 N.W.3d 812 (Minn. 2024), recently made clear that an advisory need not refer to the specific type of tests and is adequate if it informs the driver that refusal to take a test is a crime. The district court erred in concluding the advisory here was inadequate.

The court, however, agrees that Petitioner failed to prove the prescription drug affirmative defense. The court clarifies that the applicable standard of review of a district court’s determination in an implied consent proceeding that a driver proved or failed to prove a prescription drug affirmative defense, which presents a mixed question of law and fact, is abuse of discretion.

Here, the record supports the district court’s determination that Petitioner did not take her Adderall as prescribed, which is a requirement of the prescription drug affirmative defense. The district court’s order rescinding Petitioner’s driver’s license revocation is reversed. Thordson v. Comm’r Pub. Safety, A24-0158, 10 N.W.3d 310 (Minn. Ct. App. July 15, 2024).

FIFTH AMENDMENT: WHERE A DEFENDANT CONFESSES TO AN ATTEMPTED CRIME, THE STATE MUST PRESENT INDEPENDENT EVIDENCE OF AN INTENT TO COMMIT THE UNDERLYING CRIME AND A SUBSTANTIAL STEP TOWARD THE COMMISSION OF THE UNDERLYING CRIME

Appellant was convicted of attempted first-degree criminal sexual conduct while using force or coercion to cause personal injury after attacking a woman, pushing her to the floor, and choking her. He told police he “thought about raping” her. The woman testified Appellant did not touch any “intimate parts” of her body, did not undress her or himself, and did not make any sexual comments.

The Court of Appeals finds that, because the State failed to present any evidence independent of Appellant’s confession of an intent to engage in non-consensual sexual conduct, Appellant’s conviction must be reversed. Minn. Stat. § 634.03 provides that “[a] confession of a defendant shall not be sufficient to warrant conviction without evidence that the offense charged has been committed.” In light of case law, the court interprets section 634.03 to require the State “to present evidence independent of the defendant’s confession that reasonably tends to prove those elements of the specific crime charged in the complaint that constitute the corpus delicti of the crime.”

The attempt crime with which Appellant was convicted requires both that Appellant intended to commit the underlying crime of first-degree criminal sexual conduct using force or coercion causing personal injury and that he took a substantial step toward the commission of that crime. The _corpus delicti_ of an attempt crime is both the intent and substantial step elements because there cannot be an attempt without both. Thus, the court holds that if the specific crime charged in the complaint is an attempt crime, the state must present evidence independent of the confession that reasonably tends to prove both an intent to commit an underlying crime _and_ a substantial step toward the commission of the underlying crime. This corroborating evidence can be circumstantial.

Here, the State argued the independent evidence corroborating Appellant’s confession was the manner in which he entered the building, and evidence that he isolated the victim in an apartment, pushed her to the ground, and choked her. This evidence may prove attempted assault but it does not tend to prove the specific crime of attempted first-degree criminal sexual conduct. Appellant’s conviction is reversed. _State v. Hill_, A23-0560, 10 N.W.3d 317 (Minn. Ct. App. July 16, 2024).

CRIMINAL SEXUAL CONDUCT: SEXUAL CONTACT INCLUDES USING AN OBJECT TO MAKE CONTACT WITH ANOTHER’S INTIMATE PARTS

Appellant petitioned for postconviction relief after being convicted of second-degree criminal sexual conduct for touching his daughter’s “private parts” with a toy. Appellant argued that his conduct did not meet the statutory definition of “sexual contact.” The district court denied his petition and the Court of Appeals affirmed.

Minn. Stat. § 609.343, subd. 1(a), prohibits, among other acts, engaging in sexual contact with a child under the age of 13 years if the actor is more than 36 months older than the child. Sexual contact is defined to include “the intentional touching” of another’s intimate parts and touching the clothing covering another’s intimate parts. Minn. Stat. § 609.341, subd. 11(a)(i) and (iv). The Supreme Court holds that “touching” in section 609.341, subd. 11, “broadly means bringing into contact with and does not require that the ‘touching’ involve contact by a body part of the perpetrator with the complainant’s intimate parts.” Any other interpretation would be inconsistent with the purpose of Minnesota’s criminal sexual conduct statutes, preventing harm to those subjected to unwanted sexual contact. Thus, using an object to make contact with a complainant’s intimate parts falls within the definition of sexual contact.

As the evidence was sufficient to prove Appellant touched the victim’s intimate parts with a toy, the denial of his postconviction petition was appropriate. Wocelka v. State, A22-1239, 9 N.W.3d 390 (Minn. July 17, 2024).

FOURTH AMENDMENT: A SEARCH WARRANT IS REQUIRED TO TAKE SALIVA FOR DNA TESTING FOR THE PURPOSE OF OBTAINING EVIDENCE OF A CRIME

While C.J. was visiting Duluth, he went to an acquaintance’s apartment when he was shot, causing non-fatal injuries. No one saw who shot C.J. and he could not recall who shot him. A.C., whose brother was in jail and did not get along with C.J., visited her brother in jail the same day as the shooting and told him she “handled business,” along with other statements suggesting a shooting occurred and that she had received help from someone else named “Sen” or “Seneca.” While conducting surveillance, police saw A.C. and Appellant approach a vehicle believed to belong to C.J. A.C. was arrested and police found a handgun in her purse, which was later matched to 7 of the 15 cartridge cases found in the apartment where C.J. was shot. Appellant was also arrested after attempting to flee on foot. Police later searched the area with a specialized firearms canine and located a firearm buried in the snow near where Appellant was arrested.

Police obtained a warrant to search C.J.’s vehicle and the apartment A.C. and Appellant left before approaching the vehicle, and to obtain DNA swabs from A.C. and Appellant. Later in the proceedings, the State was granted an order to obtain another saliva sample from Appellant after assuring the court the first saliva sample would be disregarded. The order did not discuss a search warrant or probable cause. Testing revealed the firearm found in the snow fired eight of the 15 rounds found at the scene of the shooting and had a DNA profile matching Appellant. Appellant was ultimately convicted for attempted first-degree murder and unlawful possession of a firearm. On appeal, he argues his constitutional rights were violated when the State took a second saliva sample without a warrant.

The Court of Appeals first determines that obtaining a second saliva sample from Appellant was a search under the Fourth Amendment before concluding that the warrantless search of Appellant’s saliva violated his constitutional rights. Minn. R. Crim. P. 9.02, subd. 2(1)(f), allows the state to obtain a court order to take a saliva sample from a defendant if it “will materially aid in determining whether the defendant committed the offense charged.” Under this rule, the sample is taken to obtain confirmatory evidence of a crime. Therefore, the court holds that the constitution requires the state to obtain a valid search warrant based on probable cause before it may take a defendant’s saliva sample under Rule 9.01, subd. 2(1)(f).

Here, the State did not obtain a search warrant and the district court made no probable cause determination in its order for the saliva sample. The search therefore violated Appellant’s constitutional rights and the saliva sample should have been suppressed. Appellant’s conviction is reversed and a new trial is ordered. State v. Steeprock, A23-0875, 10 N.W.3d 683 (Minn. Ct. App. July 29, 2024).

CONTEMPT: DISTRICT COURT MUST MAKE ORAL OR WRITTEN FINDINGS WITHIN SEVEN DAYS OF A CONTEMPT ORDER BASED ON EXTRAORDINARY CONDUCT

Appellant appeared before the district court on a felony charge when he engaged in a prolonged profanity-laced outburst, partially directed at the judge. Contempt may be based on the contempt statute or the judiciary’s inherent authority. Judicially created contempt is classified as punitive or remedial. Statutory contempt distinguishes between direct and constructive contempt. The penalty provisions in the contempt statute do not apply to direct contempt, summarily sentenced, for punitive purposes, as in this case. In such cases, the power to impose a sentence derives from the court’s retained inherent authority to punish direct contempt. Case law restricts such sentences to no more than six months and recognizes that the principle of comity recommends deference to the statutory maximum sentence for contempt of 90 days.

Where contemptuous conduct is extraordinary, however, the maximum statutory sentence may be exceeded. The Supreme Court invokes its supervisory power to ensure the fair administration of justice and announces a new rule in such cases: “[W]hen a district court determines that a person’s contemptuous conduct is extraordinary, the court must make oral or written findings describing the extraordinary conduct within 7 days of the direct contempt order…” Failure to do so will result in the maximum 180-day sentence being reduced to a 90-day sentence. While the court directs this rule to be applied prospectively, the interests of judicial economy and justice warrant vacating Appellant’s 180-day sentence and imposing a 90-day sentence. State v. Oberton, A22-1727, 10 N.W.3d 64 (Minn. July 31, 2024).

STANDARD OF REVIEW: HARMLESS ERROR REVIEW REQUIRES ANALYSIS OF ENTIRE RECORD

This case focuses on the application of the harmless error analysis. Appellant was charged with third-degree criminal sexual conduct. At trial, the court admitted a video recording of the victim’s interview. Appellant was convicted but the Court of Appeals agreed that the recorded interview should not have been admitted. However, it found the error harmless because “the jury could have reached the same verdict based on other evidence… presented.” The Supreme Court holds that the Court of Appeals employed an incorrect harmless error analysis.

Harmless error review is used to determine if wrongfully admitted evidence significantly affected the verdict. Although strong evidence of guilt undermines the persuasive value of wrongly admitted evidence, the entire record must be examined, not only evidence of guilt. The question is whether the error substantially influenced the verdict, not whether the other evidence was sufficient to support the conviction.

Here, the Court of Appeals analyzed the sufficiency of the evidence by reviewing only evidence of Appellant’s guilt. However, even applying the correct standard of review, the court finds there was not a reasonable probability the recorded interview significantly affected the verdict. Appellant’s conviction is affirmed. State v. Bigbear, A22-1104, 10 N.W.3d 48 (Minn. July 31, 2024).

POSTCONVICTION: ORDER EXECUTING A PRIOR SENTENCE IS NOT A NEW SENTENCE TRIGGERING TWO-YEAR POSTCONVICTION PERIOD

Appellant received a stayed 15-month sentence for felony domestic assault in February 2019. He violated probationary conditions during the stay period, and the district court executed his sentence in August 2021. In July 2022, after serving his sentence, Appellant filed a postconviction petition alleging prosecutorial misconduct. The district court denied the petition as untimely, rejecting Appellant’s argument that the August 2021 order executing his sentence was a new sentence restarting the two-year filing period. The Court of Appeals affirmed.

The Supreme Court agrees and holds that an order executing a previously imposed sentence that does not change the substance of the sentence is not a new sentence triggering the two-year limitation period for filing a postconviction petition. The court specifically holds that an order executing a previously imposed but stayed sentence does not trigger the postconviction limitations period. Appellant’s punishment was imposed in June 2019 and the postconviction period was triggered when his original sentence was imposed at that time. His petition in 2022 was outside of the two-year filing period and was untimely. Brouillette v. State, A23-0020, 10 N.W.3d 24 (Minn. July 31, 2024).

SELF-DEFENSE: DUTY TO RETREAT APPLIES TO CLAIMS OF SELF-DEFENSE WHEN A DEFENDANT COMMITS SECOND-DEGREE ASSAULT-FEAR WITH A DANGEROUS WEAPON

Appellant was convicted of second-degree assault-fear after brandishing a machete at a woman and two men for nearly one minute. The district court rejected Appellant’s claim of self-defense, concluding he had a reasonable opportunity to retreat but failed to do so. The Court of Appeals affirmed. The Supreme Court agrees, holding that the duty to retreat when reasonably possible applies to a person who claims they were acting in self-defense when they committed the felony offense of second-degree assault-fear with a dangerous weapon, specifically, a device designed as a weapon and capable of producing death or great bodily harm. The court does not decide whether the duty to retreat applies to other charges of assault-fear.

The self-defense statute, Minn. Stat. § 609.06, subd. 1(3), authorizes “reasonable force” against another while “resisting or aiding another to resist an offense against the person.” As the issue was not argued by the parties, the court assumes without deciding that “force” includes threats of force. The duty to retreat was created by the judiciary, so the court asserts the authority to determine when it applies, noting that the duty to retreat pre-dates section 609.06 and that the legislature did not eliminate the duty by statute. The only exception to the duty to retreat is when a person is in their home and the court declines to create a second exception here.

Ultimately, the court concludes the evidence at trial disproved beyond a reasonable doubt Appellant’s claim that it was not possible for him to retreat. State v. Blevins, A22-0432, 10 N.W.3d 29 (Minn. July 31, 2024).