March 2021

PROCEDURE

A PRECEDENTIAL COURT OF APPEALS OPINION IS BINDING IMMEDIATELY UPON FILING

Appellant was charged with second-degree and third-degree murder, as well as second-degree manslaughter, following the death of a single victim. The district court granted Appellant’s motion to dismiss the third-degree murder charge, because Appellant’s death-causing actions were specifically directed at only one particular person. The Court of Appeals subsequently issued a precedential opinion in State v. Noor, 955 N.W.2d 644 (Minn. Ct. App. 2021), which held that “a conviction for third-degree murder…may be sustained even if the death-causing act was directed at a single person.” Id. at 656. The State then moved to reinstate Appellant’s third-degree murder charge, but the district court denied the motion, finding that the Court of Appeals’ opinion did not become binding “until the deadline for granting review by the Minnesota Supreme Court has expired.”

The Court of Appeals holds that the district court erred by refusing to treat Noor as binding precedent. Stare decisis, as reflected in the Minnesota Rules of Civil Appellate Procedure, requires the district courts to “‘stand by things decided’ by [the appellate court] until a different decision is made by the supreme court.” No appellate rules exist which limit the precedential effect of a Court of Appeals’ opinion that the court labels precedential. Giving precedential appellate opinions immediate authoritative effect also “promotes consistency, predictability, and stability in the law…” Once a precedential opinion from the Court of Appeals is filed, it immediately becomes binding authority. Reversed and remanded for reconsideration of the State’s motion to reinstate the third-degree murder charge. State v. Chauvin, 955 N.W.2d 684 (Minn. Ct. App. Mar. 5, 2021).

WRONGFULLY OBTAINING PUBLIC ASSISTANCE

STATE NEED NOT PROVE INTENT TO DEFEAT PURPOSES OF ALL PUBLIC ASSISTANCE STATUTES

In 2012, to obtain public assistance benefits, Appellant submitted a number of forms on which he denied having any assets or unearned income and that he paid rent of $400 per month. His application was approved. He applied for recertification for the next four years, each time stating he had no assets or unearned income and paid a monthly rent of $400-425. An investigation revealed thousands of unreported funds in various bank accounts, 12 cars, and thousands of dollars in gambling winnings. Appellant also never rented the home listed on his application forms, but had, instead, signed a contract for deed and owned the property outright as of July 2015. Ultimately, a jury found him guilty of wrongfully obtaining benefits of more than $35,000.

On appeal, Appellant argues his conviction should be reversed because the State failed to prove he acted with the intent to defeat the purposes of all of the public assistance statutes listed in the wrongfully obtaining public assistance statute, Minn. Stat. § 256.98, subd. 1. The statute makes it a crime to wrongfully obtain public assistance “with intent to defeat the purposes of” a number of listed statutes, joined by the conjunction “and.” The Court of Appeals finds, however that interpreting the list as conjunctive would produce an absurd result, noting “[t]here could be no sound reason” to require an intent to defeat the various purposes of all the listed benefits programs. The State need only prove an intent to defeat the purposes of one of the listed statutes. The appellate court also finds the district court did not err in its jury instructions or restitution order, and Appellant’s conviction is affirmed. State v. Irby, 957 N.W.2d 111 (Minn. Ct. App. Mar. 8, 2021).

POSTCONVICTION

POSTCONVICTION RELIEF IS NOT AVAILABLE AFTER A STAY OF ADJUDICATION

Pursuant to a plea agreement, Appellant pleaded guilty to misdemeanor domestic assault, the State dismissed a charge of gross misdemeanor malicious punishment of a child, and adjudication of the domestic assault charge was stayed for one year. Appellant is a citizen of Ireland and lawful permanent U.S. resident, and consulted with an immigration attorney prior to entering his plea. Appellant successfully completed and was discharged from probation, but was then notified of immigration removal proceedings against him. He filed a petition for postconviction relief seeking to withdraw his guilty plea based on ineffective assistance of counsel, claiming the immigration attorney advised him he would not be subject presumptively mandatory deportation. The postconviction court denied the petition, as Appellant was not eligible for postconviction relief because he was not convicted of a crime. The Court of Appeals affirmed.

The Supreme Court holds that the plain meaning of the postconviction statute requires that a person has a conviction under Minnesota law and a stay of adjudication is not a conviction. The postconviction statute, Minn. Stat. § 590.01, subd. 1, allows for “a person convicted of a crime” to seek postconviction relief. Section 609.02, subd. 5, explain that a conviction is either a plea of guilty, jury verdict of guilty, or a finding of guilty by the court, once accepted and recorded by the court. The court finds its holding in State v. Dupey, 868 N.W.2d 36 (Minn. 2015), binding. In Dupey, the court considered when a person “has” a conviction, and held that a stay of adjudication under Minn. Stat. § 152.18, subd. 1, is not a judgment of conviction or sentence for postconviction purposes, because there is never an adjudication of guilt. This analysis also applies to determine if a person has been “convicted of a crime” under section 590.01, subd. 1. To be “convicted of a crime,” a person must have a conviction. Thus, as in Dupey, Appellant’s stay of adjudication does not meet the definition of conviction because his guilty plea was not recorded by the district court. The denial of Appellant’s postconviction petition is affirmed. Johnston v. State, 955 N.W.2d 908 (Minn. Mar. 10, 2021).

DWI

COURT MAY NOT ENTER CONVICTIONS FOR BOTH DWI AND TEST REFUSAL ARISING FROM THE SAME BEHAVIORAL INCIDENT

Appellant appealed his convictions for DWI, test refusal, and driving after suspension of his license. Appellant, the State, and the Court of Appeals agree the district court erred by entering judgments of conviction and imposing sentences for both the DWI and test refusal offenses. Minn. Stat. § 609.04 bars “multiple convictions under different sections of a criminal statute for acts committed during a single behavioral incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985). Under Jackson, which the court finds controlling in this case, this rule is violated if multiple convictions were entered for offenses that arise under different sections of the same statute, and the offenses were committed as part of a single behavioral incident.

Both DWI and test refusal arise under different sections of section 169A.20. Pursuant to prior appellate court decisions, DWI and test refusal committed as part of a continuous course of conduct arise out of a single behavioral incident. Within a few hours, Appellant drove while intoxicated, was arrested, and refused a breath test. This is sufficient to qualify as a single behavioral incident. Thus, the entry of judgments of conviction for both DWI and test refusal violates section 609.04. Remanded for the district court to vacate one of the convictions. State v. Bonkowske, 957 N.W.2d 437 (Minn. Ct. App. Mar. 15, 2021).

MISSOURI V. MCNEELY DOES NOT APPLY RETROACTIVELY ON COLLATERAL REVIEW

Respondent was convicted of test refusal in 2010, after he refused warrantless urine and blood tests. Since then, Missouri v. McNeely, 569 U.S. 141 (2013), and Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), were decided. Under McNeely, alcohol dissipation is not a per se exigent circumstance justifying a warrantless blood test, and whether a warrantless blood test is reasonable must be determined on a case-by-case basis based on the totality of the circumstances. Under Birchfield, “test refusal… may be criminalized consistent with the Fourth Amendment only when there is a warrant for the test or a warrant exception applies.” Respondent’s petition for postconviction relief was denied, but the Supreme Court ultimately held that Birchfield applied retroactively to Respondent’s petition because it announced a new substantive rule. On remand, the district court did not address whether McNeely applied, but found Respondent was entitled to postconviction relief. The Court of Appeals reversed but held that McNeely applied retroactively.

On the State’s petition for review, the Supreme Court considers whether McNeely applies retroactively to Respondent’s postconviction petition. A new rule is applied retroactively only on direct review of convictions that were final before the new rule was announced, unless the rule is substantive or a “watershed” rule of criminal procedure. The parties agree McNeely announced a new rule and that it is not a watershed procedural rule, so the remaining question is whether it announced a new substantive rule.

New substantive rules “narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish.” Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004). The rule in McNeely, however, is procedural, as it controls the manner of determining whether an exigency exists. “Exigent circumstances was a valid exception to the warrant requirement both before and after McNeely. The Court in McNeely simply clarified how the State proves that exception.” This analysis is the same in both the DWI and test refusal contexts. Therefore, McNeely does not apply retroactively to Respondent’s postconviction challenge.

The district court did not properly apply the pre-McNeely standard for exigent circumstances in this case, so the case is remanded for the district court to determine if the test refusal statute was constitutional as applied to Respondent. Johnson v. State, 956 N.W.2d 618 (Minn. Mar. 24, 2021).

CRIMINAL SEXUAL CONDUCT

A PERSON VOLUNTARILY INTOXICATED BY ALCOHOL IS NOT “MENTALLY INCAPACITATED” UNDER MINN. STAT. § 609.341, SUBD. 7

J.S. became intoxicated after consuming five shots of alcohol and one prescription narcotic pill. Appellant drove J.S. and her friend to a house, where J.S. “blacked out” on the living room couch. She awoke some time later to Appellant having intercourse with her. J.S. protested but again lost consciousness. She woke in the morning with her shorts around her ankles and went to the hospital for a rape kit. The district court instructed the jury that “you can be mentally incapacitated following consumption of alcohol that one administers to one’s self or narcotics that one administers to one’s self or separately something else that’s administered without someone’s agreement.” The jury found Appellant guilty of third-degree criminal sexual conduct involving a mentally incapacitated complainant. The Court of Appeals affirmed Appellant’s conviction.

Minn. Stat. § 609.344, subd. 1(d), criminalizes sexual penetration with a person the actor knows or has reason to know is mentally impaired, mentally incapacitated, or physically helpless. Here, the State had to prove Appellant knew or had reason to know that J.S. was mentally incapacitated. The legislature specifically defined “mentally incapacitated” to mean “that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.” Minn. Stat. § 609.341, subd. 7.

Based on its text, structure, and punctuation, the Supreme Court finds section 609.341, subd. 7’s definition of “mentally incapacitated” to be unambiguous in that it requires that alcohol causing a person to lack judgment to give a reasoned consent must be administered to the person without the person’s agreement. The court notes that section 609.341, subd. 7, “is made up of a very simple and straightforward list of parallel nouns [intoxicating substances] followed by a qualifier [“administered to that person without the person’s agreement] offset from the list of nouns by a comma,” indicating that the qualifier should apply to all of the nouns.

The district court’s instruction to the jury on this definition was erroneous, and, because the Supreme Court cannot conclude beyond a reasonable doubt that the error was harmless, the case is remanded for a new trial. State v. Khalil, 956 N.W.2d 627 (Minn. Mar. 24, 2021).

BURGLARY

SECOND-DEGREE BURGLARY REQUIRES PROOF A DEFENDANT COMMITTED BURGLARY WHILE POSSESSING TOOLS SPECIFICALLY TO GAIN ACCESS TO MONEY OR PROPERTY

A surveillance camera inside a convenience store captured a glass pane shattering, after which Appellant stepped through. Appellant put boxes of cigars and cigarettes into a bag and left. After a jury trial, Appellant was convicted of second-degree burglary.

As is relevant in this case, second-degree burglary requires entry into a building without consent, the commission of a crime therein, and the possession of a tool to gain access to money or property “when entering or while in the building.” Minn. Stat. § 609.582, subd. 2(a). Looking to case law and the dictionary, the Court of Appeals notes that the phrase “to gain” requires the State to prove the burglar possessed a tool for the purpose of gaining access (“the means, place, or way by which a thing may be approached” or “passageway”) to money or property.

The court agrees that the evidence is insufficient evidence to prove that Appellant possessed and used a tool to gain access to money or property when he entered the store, because the evidence was inconclusive as to how the glass was broken. The court also rejects the State’s argument that the gloves and garbage bag were tools Appellant used to gain access to money or property once inside the store. Even assuming gloves or a plastic bag are “tools,” mere possession of tools is insufficient. Once inside the store, Appellant had access to the items he stole. He did not use the gloves or bag to gain access to them. Appellant’s conviction is reversed. State v. Nixon, 957 N.W.2d 131 (Minn. Ct. App. Mar. 29, 2021).

TRAFFIC VIOLATIONS

DRIVING WITH TIRES TOUCHING THE EDGE OF A FOG LINE CONSTITUTES MOVING THE VEHICLE “FROM THE LANE”

A trooper observed the outside edge of the passenger side tires of Appellant’s vehicle briefly touch the fog line on the right side of a highway. The trooper stopped Appellant’s vehicle and he was ultimately arrested for fourth degree DWI.

Minn. Stat. § 169.18, subd. 7(1), requires that “a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.” The Court of Appeals concludes that even brief contact with the fog line violates section 169.18, subd. 7(1). From prior case law and the language of the statute, the court infers that a “lane” is the area between the painted lines, not the lines themselves. Any movement at all outside of this area is a violation of the statute, which aims to prevent collisions outside of a vehicle’s lane that “can occur when even a small portion of a car extends out of bounds.”

The trooper here had reason to suspect Appellant violated section 169.18, subd. 7(1), and, therefore, had reasonable suspicion to stop Appellant’s vehicle. Soucie v. Comm’r of Pub. Safety, 957 N.W.2d 461 (Minn. Ct. App. Mar. 29, 2021).

HOMICIDE

DEPRAVED MIND MURDER REQUIERS AN EMINENTLY DANGEROUS ACT COMMITTED WITH THE MENTAL STATE OF RECKLESS DISREGARD OF HUMAN LIFE

While intoxicated, Appellant drove a snowmobile at a high rate of speed and collided with an eight-year-old child, who later died. At trial, the district court gave the model jury instruction on third-degree depraved mind murder, to which Appellant did not object. The jury ultimately found Appellant guilty on the third-degree murder charge. He appealed, challenging the court’s instructions on the mental state required for third-degree depraved mind murder. The Court of Appeals found the jury instruction was erroneous, but that it was not plain error. The Supreme Court granted petitions for review from both Appellant and the State. The third-degree depraved mind murder statute states that “[w]hoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree…” The jury instruction in question is as follows: “The defendant’s intentional act which caused the death of [the child] was eminently dangerous to human beings and was performed without regard for human life. Such an act may not be specifically intended to cause death and may not be specifically directed at [the child], but it was committed in a reckless or wanton manner with the knowledge that someone may be killed and with a heedless disregard of that happening.” The Supreme Court finds that the instruction was erroneous.

The court first summarizes its previous cases discussing depraved mind murder, noting that dicta from those cases caused confusion regarding the required mental state, leading some to believe a reckless act was required, as opposed to a mental state of reckless disregard of life. The court clarifies that “the mental-state element for third-degree depraved mind murder requires a showing that the eminently dangerous act was committed with a mental state of reckless disregard of human life” (emphasis in original). The offense does not include “a mental-state element that requires a showing that the act was committed in a reckless manner” (emphasis in original).

The court specifically holds that “a defendant is guilty of third-degree murder, when based on the attending circumstances: (1) he causes the death of another without intent; (2) by committing an act eminently dangerous to others, that is, an act that is highly likely to cause death; and (3) the nature of the act supports an inference that the defendant was indifferent to the loss of life that this eminently dangerous activity could cause.”

The jury instruction here, which mirrored CRIMJIG 11.38, incorrectly attaches the reckless component to the act itself. However, even if this error was plain, it did not affect Appellant’s substantial rights, as it is not reasonably likely it had a significant effect on the verdict. Appellant’s conviction is affirmed. State v. Coleman, 957 N.W.2d 72 (Minn. Mar. 31, 2021).

FIREARMS

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

Appellant was arrested for DWI and told police his phone was in the center console of his vehicle, next to his pistol. Appellant had a valid permit to possess a pistol. He was charged with, among other offenses, carrying a pistol in a public place while under the influence of alcohol. The district court denied his motion to dismiss, but the Court of Appeals reversed, finding that the public highway on which Appellant drove was a public place.

Minn. Stat. § 624.7142, subd. 1(4), notes that “[a] person may not carry a pistol on or about the person’s clothes or person in a public place… when the person is under the influence of alcohol.” “Public place” is not defined in the statute, and dictionaries provide multiple reasonable definitions. Thus, the Supreme Court first determines the statute is ambiguous.

Multiple cannons of construction support a conclusion that the statute prohibits carrying a pistol in a motor vehicle that is driven on a public highway. First, the “mischief to be remedied” is carrying a pistol in public while impaired, which endangers others. This danger is present even if the person is in a vehicle. The “object to be attained” by the statute is public safety, specifically, reducing injury to people from the discharge of a pistol in a public place. Vehicles are mobile and may be driven in close proximity to people in public places, so prohibiting an impaired driver from carrying a pistol on a highway promotes the purpose of the statute. As to the “consequences” of the court’s interpretation, the court notes that its holding is narrow, does not open the door to warrantless vehicle searches, and protects the public while imposing only a minimal burden on carry permit holders. The Supreme Court affirms the decision of the Court of Appeals. State v. Serbus, 957 N.W.2d 84 (Minn. Mar. 31, 2021).