DATE: MARCH 2019

I. MN IMPRISONMENT AND EXONERATION REMEDIES ACT

A. “CONSISTENT WITH INNOCENCE” MEANS “AGREES WITH INNOCENCE”: Appellant was arrested and tried for a 1993 robbery of a convenience store, with charges including aggravated robbery, kidnapping, second-degree assault, and attempted second-degree criminal sexual conduct. A jury convicted him, but the court of appeals later reversed, finding the district court erred in introducing Spreigl evidence. At his second trial, Appellant was found not guilty. The district court subsequently denied Appellant’s petition for certification of eligibility for compensation based on exoneration under the Minnesota Imprisonment and Exoneration Remedies Act (MIERA), concluding that a reversal and remand for a new trial based on erroneously admitted Spreigl evidence was not “on grounds consistent with innocence” and that Appellant did not establish his innocence by a preponderance of the evidence.
A claim for compensation under the MIERA may only be filed if a person first petitions a court for and receives an order certifying they are eligible for compensation based on exoneration, which requires the person to (1) meet the statutory definition of “exonerated,” and (2) either have the prosecutor join the petition or prove their innocence by a preponderance of the evidence. The Court of Appeals does not reach the second part of this test, as it concludes that the district court correctly concluded that the reversal of Appellant’s conviction was not on “grounds consistent with innocence.”
A person is exonerated under the MIERA of a Minnesota court “ordered a new trial on grounds consistent with innocence and the prosecutor dismissed the charges or the petitioner was found not guilty at the new trial,” and that decision becomes final. Minn. Stat. § 590.11, subds. 1(1)(ii), 1(2). The court rejects Appellant’s argument that the earlier reversal of his conviction was based on improper Spreigl evidence as well as alibi evidence that exonerated him, clarifying that the court’s decision made only fleeting references to the alibi evidence in its consideration of whether the admission of the improper Spreigl evidence was harmless error.
The court then finds that reversal for erroneously admitted Spreigl evidence is not a reversal “on grounds consistent with innocence.” The court notes that there are two reasonable interpretations of “on grounds consistent with innocence”: “does not contradict innocence” and “agrees with innocence.” The prohibition on introducing Spreigl evidence is a procedural safeguard, which is irrelevant to the defendant’s actual guilty or innocence, and thus does not “agree with innocence,” but “does not contradict innocence.” However, the court finds that the legislature intended for “consistent with innocence” to mean “agrees with innocence,” both to avoid absurd results, and because any other interpretation would render the term ineffectual and superfluous as the statute already contemplates a conviction that has been reversed or remanded. The district court’s denial of Appellant’s petition is affirmed. Jonathan Edward Buhl v. State, No. A18-0245, 2019 WL 114172 (Minn. Ct. App. Jan. 7, 2019)

II. IMPLIED CONSENT

A. POLICE PERMITTED TO EXECUTE SEARCH WARRANT FOR BLOOD TEST OVER DRIVER’S OBJECTION WHEN POLICE DID NOT READ IMPLIED CONSENT ADVISORY: After Appellant’s arrest for an unrelated matter, police suspected he had been driving while under the influence of methamphetamine. Police did not read Appellant the Implied Consent Advisory, but, instead, obtained a search warrant. Over Appellant’s objection, police executed the warrant to obtain a sample of Appellant’s blood, which tested positive for controlled substances. Prior to trial, the district court denied Appellant’s motion to suppress, and Appellant was subsequently found guilty after a jury trial. The issue on appeal is whether police were permitted to execute the search warrant after Appellant’s DWI arrest (in 2016), even though Appellant did not consent and objected to the test. Although nonconsensual blood draws are constitutionally permissible if performed pursuant to a valid search warrant, Appellant argues that a test may not be given if a person refuses under the 2014 version of Minn. Stat. § 169A.52, subd. 1 (in effect at the time of the offense). The question is whether that statutory provision applies if law enforcement did not read the Implied Consent Advisory to a driver after arresting him or her for DWI.
Section 169A.52, subd. 1, falls within the portion of Minnesota’s “Driving While Impaired” chapter, chapter 169A, that lays out the “Implied Consent Laws.” Section 169A.52, specifically, establishes civil consequences for test refusal or failure. In contrast, another portion of chapter 169A, titled “Criminal Provisions,” sets for criminal offenses and penalties for driving while impaired, and yet another portion titled “Procedural Provisions” contains provisions that may apply in a criminal DWI prosecution. “The implied-consent law provides a means by which a person who has been arrested for DWI may be tested (or not tested) and thereafter denied driving privileges in an administrative process, with an opportunity for judicial review of a license revocation in a civil proceeding.” Other provisions in chapter 169A govern criminal DWI prosecutions, one of which permits evidence of breath, urine, or blood test at trial, without regard to whether the sample was obtained pursuant to the implied-consent law. The court also notes that the implied-consent law does not require an officer to invoke the implied-consent law, nor does anything in the law prevent an officer from obtaining and executing a search warrant for a sample.
The court holds that section 169A.52, subd. 1, applies only if the implied-consent law is invoked by an officer’s reading of the implied-consent advisory to a driver arrested for DWI. The court finds, therefore, that section 169A.52, subd. 1, unambiguously did not prevent police from executing the search warrant authorizing the taking of a sample Appellant’s blood.
Finally, the court notes it would reach the same result even if it had found section 169A.52, subd. 1, to be ambiguous. The district court’s denial of Appellant’s motion to suppress evidence of the result of the blood test is affirmed. State v. Brett Michael Wood, No. A17-1853, 922 N.W.2d 209 (Minn. Ct. App. Jan. 7, 2019).

III. DOMESTIC ASSAULT

A. CASE-BY-CASE ANALYSIS OF FACTORS IN SECTION 518B.01, SUBD. 2(B), REQUIRED TO DETERMINE IF “SIGNIFICANT ROMANTIC OR SEXUAL RELATIONSHIP” EXISTS: Appellant was convicted of felony domestic assault under Minn. Stat. § 609.2242, subd. 4, for “intentionally inflict[ing]… bodily harm” “against a family member or household member as defined in Minn. Stat. § 518B.01, subd. 2.” On appeal, he argues the evidence at trial was insufficient to prove the victim, C.P., fit the definition of “household or family member.” This definition includes someone with whom the defendant has a “significant romantic or sexual relationship.” Minn. Stat. § 518B.01, subd. 2(b)(7). “Significant” is not defined, but the statute directs courts to “consider the length of time of the relationship; type of relationship; frequency of interaction between the parties; and, if the relationship has terminated, length of time since the termination.” The Supreme Court confirms that these factors in section 518B.01, subd. 2(b), are incorporated in the criminal statute, section 609.2242, subd. 4, by explicit reference and must be considered to determine whether a “significant romantic or sexual relationship” existed. The Supreme Court also finds that the phrase “significant romantic or sexual relationship” is not ambiguous, as its plain meaning is understood by reference to the list of statutory factors in section 518B.01, subd. 2(b).
Appellant and C.P. met in March 2016 at a homeless shelter, where C.P. was employed. They began dating, although C.P. had been living with another man for 12 years, who C.P. claimed was just a roommate but whom she lied to in order to spend time with Appellant. In June and July 2016, Appellant and C.P. stayed in hotel rooms together for a number of days, during which time C.P. relapsed after 14 years of sobriety. C.P.’s family reported her missing after she did not communicate with them for 24 hours and missed several shifts at work. When C.P. was located at a hotel with Appellant, where she had been for five days, intoxicated and without food, and with bruises and lacerations on her face. C.P. described Appellant to police as a “friend,” but admitted to having sexual intercourse with him on a number of occasions and that she was “failing in love with him.” The Court of Appeals affirmed Appellant’s conviction, as does the Supreme Court, finding this evidence sufficient to support the jury’s finding that Appellant and C.P. were in a “significant romantic or sexual relationship” when the assault occurred. State v. Gerald Robinson, No. A17-0525, 921 N.W.2d 755 (Minn. Jan. 9, 2019).

IV. ROBBERY

A. “PERSONAL PROPERTY” IS ALL PROPERTY THAT IS NOT REAL PROPERTY: Appellant was convicted of simple robbery for taking a bottle of liquor from a liquor store without paying. He argued on appeal that the evidence was insufficient to support his conviction because a bottle of liquor owned by a business is not “personal property.” The Court of Appeals affirmed his conviction, as does the Supreme Court.
Under the simple robbery statute, Minn. Stat. § 609.24, it is a crime when someone “having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another…” The Supreme Court notes that it must look beyond the common and ordinary meaning of “personal property,” as it has acquired a clear and specialized meaning: any property that is not real property. This meaning is the only reasonable interpretation of the phrase in the context of the robbery statute. State v. John Lee Bowen, No. A17-0331, 921 N.W.2d 763 (Minn. Jan. 16, 2019).

V. SENTENCING

A. IF FELONY CONVICTION RECEIVED MISDEMEANOR OR GROSS MISDEMEANOR SENTENCE, COUNT CONVICTION IN CRIMINAL HISTORY SCORE AS MISDEMEANOR OR GROSS MISDEMEANOR: After a jury trial, Appellant was convicted of first-degree assault for causing great bodily harm to his live-in girlfriend’s 23-month-old child, B.G.D. After Appellant alone put a protesting B.G.D. down for a nap, B.G.D. started seizing and vomiting, and was rushed to the hospital for a severe brain injury. Testing revealed significant trauma to B.G.D.’s brain. Dr. Swenson, the child abuse pediatrician who evaluated B.G.D. in the hospital, testified as an expert for the State at trial, testifying regarding “abusive head trauma” (formerly called “shaken baby syndrome”) as well as her examination of B.G.D., concluding with an opinion that B.G.D.’s injuries were caused by abusive head trauma. Appellant argues the evidence was insufficient to prove he caused B.G.D.’s injuries, the district court erred by admitting Dr. Swenson’s testimony about the cause of B.G.D.’s injuries, and the district court erred in calculating his criminal history score.
The Court of Appeals first finds the evidence was sufficient to prove Appellant caused B.G.D.’s injuries. Next, the court finds that Dr. Swenson’s testimony had foundational reliability, because the record establishes it is based on a reliable scientific theory. Here, other theories or evidence was introduced, through the testimony of defense experts, that tended to contradict Dr. Swenson’s opinion. However, that does not justify excluding Dr. Swenson’s testimony. Assessing the weight and credibility of the experts’ opinions is the province of the fact finder. The court also rejects Appellant’s argument that Dr. Swenson improperly offered an opinion as to Appellant’s intent. Instead, the court finds Dr. Swenson testified as to an opinion that “embraces the ultimate issue.” She gave her opinions, based on B.G.D.’s history, nature and extent of injuries, testing, and professional experience, that his injuries were not accidental, and the timing of B.G.D.’s injuries. Her testimony did not decide the question of Appellant’s intent, but provided a medical context for the jury to make its own determination.
Lastly, the court rules that Appellant’s criminal history score was incorrectly calculated. The district court assigned two criminal history points for Appellant’s 2014 theft conviction (property exceeding $5,000) – one felony point and one custody status point, as Appellant was on probation at the time. Appellant initially received a stay of imposition and was placed on probation for the theft conviction. In 2016, the court amended his sentence and executed a sentence of 342 days, which is within the gross misdemeanor sentencing limits. Thus, for purposes of the sentencing guidelines, Appellant received a gross misdemeanor sentence, not a felony sentence. Based on the language of the guidelines, the sentencing commission’s comments, and historical application of the guidelines, the court conclude that a felony conviction that results in a gross misdemeanor or misdemeanor sentence should be treated as a gross misdemeanor or misdemeanor for purposes of calculating a defendant’s criminal history score. Thus, Appellant should not have received a felony point for his theft conviction that received a non-felony sentence. State v. Matthew Scott Stewart, No. A17-2039, 2019 WL 272858 (Minn. Ct. App. Jan. 22, 2019).

VI. CRIMINAL SEXUAL CONDUCT

A. MINN. STAT. § 617.247’S 10-YEAR CONDITIONAL RELEASE TERM REQUIRED IF, AT TIME OF COMMITMENT FOR VIOLATION OF § 617.247, DEFENDANT HAS AN EARLIER QUALIFYING CONVICTION: Appellant committed child pornography and first- and second-degree criminal sexual conduct offenses. In August 2009, he committed criminal sexual conduct, and entered a plea to second-degree criminal sexual conduct in January 2010. Adjudication on the criminal sexual conduct charge was stayed in April 2010, but a sentence was executed in January 2012 after two probation violations. In March 2010, child pornography was found on a computer to which Appellant had access, and he was charged with child pornography possession in April 2010, to which he pleaded guilty in October 2012. As part of his child pornography sentence, the court imposed a 10-year conditional release term, under Minn. Stat. § 617.247, subd. 9.
Subdivision 9 of section 617.247 addresses the conditional release term to be imposed on a person who violates that section. Under subdivision 9, an enhanced conditional release term of ten years is imposed if the person has previously been convicted of a violation of section 617.247 or other listed statutes related to criminal sexual conduct. The court finds no ambiguity in subdivision 9 and finds that the single plain meaning of its provisions are as follows: “[A] person convicted under section 617.247 must be sentenced to either a 5-year term of conditional release or, if the person has an earlier qualifying conviction, a 10-year term of conditional release.” The court further holds that the time for determining whether the “earlier qualifying conviction” condition is satisfied is, as the statute explicitly states, “when a court commits a person to the custody of the commissioner of corrections for violating” section 617.247.
Appellant’s second-degree criminal sexual conduct conviction is a qualifying conviction listed in section 617.247 and the conviction occurred in August 2011. His warrant of commitment for violating section 617.247 was signed by the district court in October 2012. Appellant plainly qualified for the enhanced conditional release term. State v. Minnesota v. Everett Overweg, No. A17-1978, 922 N.W.2d 179 (Minn. Jan. 23, 2019).

B. SUBSTANTIAL STEP MADE TOWARD COMMITTING THIRD-DEGREE CRIMINAL SEXUAL CONDUCT: Appellant was convicted of attempted third-degree criminal sexual conduct, electronic solicitation of a child, and electronic distribution of material describing sexual conduct to a child for making contact online with a BCA agent posing as a young male. Appellant initiated the conversation, asked the decoy if he wanted to meet up, requested nude pictures from the decoy, and sent the decoy explicit photographs. Even after being told the decoy was 14 years old, Appellant continued to ask for nude pictures, asked about the decoy’s sexual experience, told the decoy he wanted to engage in sexual acts with him, and made arrangements to meet the decoy at the decoy’s “home” while the decoy’s “mother” was at work the next day. Appellant went to the address given by the decoy the next day and was arrested when he knocked on the door. On appeal, Appellant argues he did not take a substantial step toward committing third-degree criminal sexual conduct.
What constitutes a “substantial step” is defined in case law. There must be an intent to commit the crime, followed by an overt act or acts tending, but failing, to accomplish it, and which amount to more than mere preparation, remote from the time and place of the intended crime. State v. Dumas, 136 N.W. 311, 314 (Minn. 1912). Appellant argues his acts were nothing more than mere preparation. He points to cases that he argues hold that some physical contact, words delivered in person, or an attack are required for acts to constitute a “substantial step” toward committing third-degree criminal sexual conduct. However, the Court of Appeals notes that social media has changed how sexual encounters occur and how sexual crimes are perpetrated. “Actions that historically demonstrated a substantial step toward commission of a sex crime, such as preliminary physical contact, may no longer apply when social media is used to initiate the sexual encounter.” The court holds that Appellant’s actions here were not remote in time or location from the intended criminal sexual conduct and directly tended in some substantial degree to accomplish the crime. State v. Brian James Wilkie, No. A18-0288, 2019 WL 333483 (Minn. Ct. App. Jan. 28, 2019).

VII. FOURTH AMENDMENT

A. NO REASONABLE EXPECTATION OF PRIVACY IN IDENTIFYING INFORMATION GIVEN TO HOTEL TO RENT ROOM: Police obtained a hotel guest list from the hotel’s clerk and learned Appellant had rented a room for six hours using a Pennsylvania identification card and paid with cash. This prompted police to check Appellant’s criminal history, when they discovered numerous drug, firearms, and fraud arrests. Appellant allowed police to enter his room, and police observed a large amount of cash, two printers, and several envelopes. After obtaining a search warrant, police found several fake paychecks from various hotels to “Spencer Alan Hill” at various addresses, a large amount of cash, and check-printing paper that had been loaded into a printer. The district court denied Appellant’s motion to suppress evidence obtained from his hotel room and convicted Appellant of check forgery and offering a forged check after a stipulated evidence trial.
Minn. Stat. § 327.12 requires hotel operators to maintain registration records and make them “open to the inspection of all law enforcement.” The question on appeal is whether Appellant had a reasonable expectation of privacy in the identifying information the hotel collected and was required to share with police under this statute. The Court of Appeals holds that Appellant had no such reasonable expectation of privacy. Appellant voluntarily turned over his identifying information to the hotel, and prior cases have held that, even though Appellant may have assumed his information would only be used for a limited purpose, he assumed the risk that the hotel would reveal it to police. Thus, the warrantless search of the hotel’s registration records, through which police obtained Appellant’s identifying information, did not implicate Appellant’s Fourth Amendment rights. State v. John Thomas Leonard, No. A17-2061, 2019 WL 418508 (Minn. Ct. App. Feb. 4, 2019).

VIII. INDECENT EXPOSURE

A. INDECENT EXPOSURE A GENERAL INTENT OFFENSE: Appellant was convicted of indecent exposure. The arresting officer testified at trial that Appellant appeared to be intoxicated, but no chemical tests were administered. Appellant testified he smoked what he believed to shisha, flavored tobacco in a hookah, at the home of an unidentified acquaintance, but that he had an intense reaction, causing him to vomit and black out prior to the incident. The district court found Appellant was not entitled to instructions on voluntary or involuntary intoxication, because indecent exposure is a general intent offense, and the Court of Appeals affirmed Appellant’s conviction.
The Supreme Court rejects Appellant’s argument that previous interpretations of the indecent exposure statute added a specific intent requirement. The court notes that these cases merely draw a distinction between volitional and accidental acts, requiring the State to prove that a lewd exposure was volitional. Furthermore, the court holds that the plain and unambiguous language of the indecent exposure statute creates a general intent crime, as it merely prohibits a person from intentionally engaging in the prohibited conduct (an openly lewd act). The Court of Appeals is affirmed. State v. Mohamed Musa Jama, No. A17-0481, 2019 WL 944371 (Minn. Feb. 27, 2019).

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