March 2023

THEFT: ALUMINUM FOIL USED TO EVADE ANTI-THEFT SECURITY SENSORS IS “SHOPLIFTING GEAR”

Appellant was arrested after being found in a retail store with a bag containing unpurchased items with aluminum foil wrapped around the anti-theft security sensors attached to the items. She was found guilty of possessing shoplifting gear and filed a postconviction petition, arguing there was insufficient evidence to support her conviction because aluminum foil is a common household item not designed to assist in shoplifting or defeat electronic article surveillance systems. The district court denied her petition and the Court of Appeals affirmed.

The Supreme Court holds that an “instrument designed to assist in shoplifting or defeating an electronic surveillance system,” under Minn. Stat. § 609.521(b) (“shoplifting gear statute”), “means any item produced with special intentional adaptation to assist the defendant in shoplifting or defeating an electronic article surveillance system.” The dispute in this case centers on the term “designed” in section 609.521(b) and whether aluminum foil used in a particular manner was “designed” as required by that section.

The court notes that all definitions of “design” or “designed” put forth by the parties “share a common focus on the creation of an item or idea to effectuate a particular ‘end,’ ‘purpose,’ or ‘plan.’” The shoplifting gear statute “prohibits the possession of an item that is planned or produced with special intentional adaptation to the specific end of shoplifting.” The court disagrees with Appellant’s argument that she merely used aluminum foil to shoplift, and that aluminum foil was not “designed” to assist in shoplifting or defeating an electronic surveillance system. Aluminum foil has a commercial design to act as a barrier to light, oxygen, moisture, and bacteria. However, it is sold in packaged rolls, a form rendering the foil useless as a barrier. It is only used for its designed purpose when molded and formed into a shape, so its use necessarily involves forming the raw foil material into a new object. Appellant did just this by fashioning foil into wrappings around sensors to defeat the store’s electronic surveillance system in order to shoplift. The evidence was sufficient to support her conviction. Douglas v. State, 986 N.W.2d 705 (Minn. Mar. 15, 2023).

SIXTH AMENDMENT: NO VIOLATION OF RIGHT TO COUNSEL BY STATE REVIEWING RECORDED CALLS BETWEEN THE DEFENDANT AND HIS ATTORNEY BECAUSE THE DEFENDANT CHOSE NOT TO USE AN AVAILABLE UNRECORDED PHONE LINE

Appellant was incarcerated for murder awaiting resentencing following an earlier appeal when he made a number of phone calls on a recorded jail phone line to his attorney and other calls to a third-party discussing defense strategies. The jail provided a process for communicating with counsel on an unrecorded line, but Appellant never used this option. The State received and reviewed recordings of the calls. The district court ordered the State to establish a taint team to ensure the State did not listen to or use any privileged communications between Appellant and his defense team. The Court of Appeals subsequently granted the State’s petition for a writ of prohibition, concluding there was no Sixth Amendment violation, and a taint team was not warranted.

In some situations, the State’s interference with the confidential relationship between a defendant and his attorney may implicate the right to counsel. However, an intrusion into that relationship, on its own, does not constitute a Sixth Amendment violation. The Supreme Court declines to articulate a full standard as to when such interference or intrusion amounts to a violation of the right to counsel. Instead, the court holds “that the Sixth Amendment right to counsel is not implicated when the State provides an incarcerated defendant a process for communicating with counsel on an unrecorded phone line, and the defendant instead chooses to communicate with counsel or share defense strategies with a third party by a method the defendant knows is recorded.” Therefore, the district court was not authorized by law to order a taint team and the Court of Appeals did not err when it granted the State’s petition for a writ of prohibition. In re State (State v. Flowers), 986 N.W.2d 686 (Minn. Mar 15, 2023).

TRAFFIC: STATUTE PROHIBITING OPERATING A MOTOR VEHICLE WITH LICENSE CANCELLED OR DENIED AS INIMICAL TO PUBLIC SAFETY IS ENFORCEABLE ON PRIVATE PROPERTY

Respondent was found guilty of felony DWI and driving after cancellation (inimical to public safety), under Minn. Stat. § 171.21, subd. 5 (“DAC-IPS statute”), after police saw him driving a motor vehicle down a private driveway when Respondent’s license was cancelled as inimical to public safety. The Court of Appeals reversed, concluding the DAC-IPS statute is not enforceable on private property.

The DAC-IPS statute makes it a gross misdemeanor to “operat[e] in this state any motor vehicle, the operation of which requires a driver’s license, while the person’s license or privilege is canceled or denied,” if the license or privilege was canceled or denied under section 171.04, subd. 1(10), and they were given notice of or reasonably should have known of the cancellation or denial. Minn. Stat. § 171.24, subd. 5.

The Supreme Court looks to prior versions of the DAC-IPS statute, which explicitly limited their application to the operation of motor vehicles “upon streets or highways in this state.” This limitation was removed in 1984, broadening the geographic reach of the statute and showing the legislature’s intent for the statute to apply to drivers on non-public roads. The court holds that the DPS-IPS statute is not limited to public streets and highways and may be enforced on private property. The court also finds the district court properly denied Respondent’s motions to suppress and dismiss. The Court of Appeals is reversed, and Respondent’s convictions are reinstated. 4 State v. Velisek, A21-0275, 986 N.W.2d 696 (Minn. Mar. 15, 2023).

COMPETENCY: DEFENDANT BEARS BURDEN OF PROOF WHEN ASSERTING THEIR OWN COMPETENCE

Appellant was charged with second-degree murder and the district court ordered a competency evaluation of Appellant. The district court found Appellant was not competent and this appeal followed.

The Supreme Court held in State v. Curtis, 921 N.W.2d 342 (Minn. 2018), that “[w]here a defendant’s competency is disputed,” Minn. R. Crim. P. 20.01, subd. 5, creates a “presumption of incompetence,” which requires the party claiming competence to carry the burden of proof. However, the question of who bears the burden of proof in a contested competency proceeding when a defendant asserts his own competence has not yet been resolved. The court in Curtis stated that who bears the burden “can only be ascertained once a party affirmatively asserts that a defendant is competent to stand trial.

The Court of Appeals holds that, when a defendant asserts their own competence in a contested competency proceeding under Rule 20.01, the defendant bears the burden of proving competence. Here, the district court did not place the burden on either party, instead determining competency on the weight of evidence alone. This competency determination without allocation of the burden of proof to Appellant was erroneous. The case is remanded to the district court for another competency hearing. State v. Thompson, A22-0737, N.W.2d , 2023 WL 2564636 (Minn. Ct. App. Mar. 20, 2023).

PROCEDURE: ORDER DISMISSING COMPLAINT FOR LACK OF PROBABLE CAUSE IS APPEALABLE IF IT IS NOT BASED SOLELY ON A FACTUAL DETERMINATION

Respondent was charged with four counts of second-degree criminal sexual conduct relating to alleged sexual abuse of a young girl, in the United Kingdom and in Edina. He reported the incidents to child protection, wrote a letter of apology to the victim’s father, and acknowledged his offenses in a phone call to a detective. In a forensic interview of the victim, she described the incident in the United Kingdom but did not recall the Edina incident. The United Kingdom charges were dismissed for lack of subject matter jurisdiction and are not at issue in this appeal. The district court also granted Respondent’s motion to dismiss the Edina charges for lack of probable cause. The district court found the only evidence supporting these charges were Respondent’s confessions and determined that multiple confessions cannot corroborate themselves. The Court of Appeals dismissed the State’s appeal, finding the dismissal order not appealable, because it was based solely on a factual determination.

The Supreme Court reverses, finding the district court’s order was appealable because it was based on the district court’s interpretation of Minn. Stat. § 634.03. Minn. R. Crim. P. 28.04, subd. 1(1), allows the State to appeal a pretrial dismissal order based on questions of law, but not pretrial dismissal orders premised solely on a factual determination. The issue here is the italicized portion that rule. The court determines that, “if the basis for a district court’s probable cause dismissal is exclusively factual, then the probable cause dismissal is not appealable,” but “if the basis for... the dismissal is a construction of facts that is based on a legal conclusion, then the dismissal” is not appealable.

Here, the dismissal order was based on the district court’s legal conclusion regarding corroboration requirements – that is, the court interpreted section 634.03 (“A confession of the defendant shall not be sufficient to warrant conviction without evidence that the offense charged has been committed.”) to require the State to corroborate Respondent’s confessions with evidence other than another confession. As it was based in part on a legal conclusion, the dismissal order hear was appealable. The matter is remanded to the Court of Appeals to consider this case in light of State v. Dixon, 981 N.W.2d 387 (Minn. 2022) (holding that section 634.03 does not preclude a probable cause finding based on an uncorroborated confession) (decided while Respondent’s appeal was pending). State v. Gray, 987 N.W.2d 563 (Minn. Mar. 22, 2023).

RESTITUTION: THE STATE IS NOT REQUIRED TO PROVE A DEFENDANT’S ABILITY TO PAY

Appellant was convicted of second-degree murder and ordered to pay restitution. He challenged the restitution order, arguing he was unable to pay, but the district court rejected his challenge. The Court of Appeals affirmed, but the case was remanded for the district court to establish a payment schedule.

Minn. Stat. § 611A.045, subd. 3(a), places on an offender the burden of producing evidence to challenge the amount of restitution or specific items of restitution. The burden then shifts to the State to prove the amount of loss sustained by the victim and the appropriateness of a particular type of restitution. Then, the court is to resolve any dispute as to the proper amount or type of restitution by a preponderance of the evidence. In deciding whether to order restitution and the amount of restitution, subdivision 1(a) of the statute requires the court to consider (1) the amount of economic loss sustained by the victim as a result of the offense; and (2) the income, resources, and obligations of the defendant. Appellant argues these two subdivisions create a requirement that the State prove a defendant’s income, resources, and obligations. In other words, he argues the State’s burden of showing the appropriateness of a particular type of restitution requires the State to prove his ability to pay restitution.

The Supreme Court holds that section 611A.045 does not assign a burden of proof regarding a defendant’s ability to pay. Subdivision 3(a) requires the State to demonstrate not the general appropriateness of a restitution order, but the appropriateness of a particular condition – that being the “type of restitution.” Looking to the plain and ordinary meaning of this phrase, the court notes that the focus of the term “type of restitution” is on the kind or category of restitution at issue. Put another way, the inquiry under subdivision 3(a) is whether the State has shown that the victim’s request for restitution consists of the type, kind, or categories of expenses that should be compensated through restitution. The Court of Appeals is affirmed. State v. Cloutier, 987 N.W.2d 214 (Minn. Mar. 22, 2023).

CONTROLLED SUBSTANCES: AMENDMENT CHANGING DEFINITION OF “MARIJUANA” TO EXCLUDE HEMP MITIGATED PUNISHMENT AND AMELIORATION DOCTRINE APPLIES

Appellant was convicted in 2020 of two marijuana-related fifth-degree controlled substance offenses, one for possessing three pounds of a plant material the State claimed was marijuana and the other for possessing vaporizer cartridges filed with a liquid mixture containing tetrahydrocannabinols. He argues the evidence was insufficient to support the jury’s guilty verdicts because of a 2019 amendment to the definition of marijuana, which excluded “hemp,” and which went into effect 10 days after Appellant as charged but 7 months before his trial. The Court of Appeals reversed Appellant’s conviction for possession of the plant material but upheld his conviction for possession of the vaporizer cartridges.

Under the common law amelioration doctrine, an amended criminal statute applies to crimes committed before its effective date if: (1) there is no statement by the Legislature clearly establishes a contrary intent; (2) the amendment mitigates punishment; and (3) final judgment has not been entered when the amendment takes effect. The only requirement at issue here is the second – that is, whether the removal of certain conduct from the definition of a crime is a mitigation of punishment.

In previous cases, the amelioration doctrine has been considered in the context of the Legislature’s reduction of the penalty for a crime, but the Supreme Court finds it illogical to limit the scope of mitigation to only sentence reduction. The court holds “that a statutory amendment mitigates punishment… when a change in the law either reduces the penalty for criminal conduct or redefines criminal conduct in a manner benefitting the defendant, including through the decriminalization of the conduct.”

Next, the court considers whether the 2019 amendment decriminalized conduct the possession of hemp. Before the amendment, the definition of marijuana in Chapter 152, which creates criminal penalties for possessing controlled substances, made no exceptions for hemp. After the 2019 amendment, the definition of marijuana explicitly excluded “hemp.” Thus, the amendment made it no longer a crime to possess hemp (the plant Cannabis sativa L. and its derivatives with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent). By decriminalizing the possession of hemp, the amendment mitigated punishment. Under the 2019 amendment, the only material difference between marijuana and hemp is the delta-9 THC concentration. Because the amendment effectively incorporates the delta-9 THC requirement into the definition of marijuana, the delta-9 THC concentration of a substance is a required element to be proven by the State. Thus, the State must not prove beyond a reasonable doubt that a substance is marijuana by proving the delta-9 THC concentration exceeds 0.3 percent on a dry weight basis.

Here, the State did not test the delta-9 THC concentration of the plant material. Thus, the jury could reasonably infer from the circumstances proved either that the plant material in Appellant’s possession had a delta-9 THC concentration greater than 0.3 percent or less than 0.3 percent. As such, the evidence was insufficient to support Appellant’s conviction for possessing the plant material.

The State also never tested the concentration of the liquid in the vaporizer cartridges. However, the Court of Appeals found the evidence sufficient to sustain Appellant’s conviction for possessing with intent to sell the cartridges under Minn. Stat. § 152.025, subd. 1(1), on the basis that the liquid substance therein was illegal in any amount as a Schedule I controlled substance. However, hemp is now legal and defined based on its delta-9 THC concentration. Thus, section 152.025, subd. 1(1), no longer broadly criminalizes the sale of all tetrahydrocannabinols. The State did not test the liquid mixture here for the specific type of THC present nor the specific concentration of delta-9 THC. Therefore, again, the jury could rationally conclude either that the liquid mixture had a delta-9 THC concentration of greater than 0.3 percent or less than 0.3 percent. The evidence was insufficient to support Appellant’s conviction relating to the vaporizer cartridges. State v. Loveless, 987 N.W.2d 224 (Minn. Mar. 22, 2023).

EXONERATION COMPENSATION: PETITION FOR DECLARATION OF ELIGIBILITY IS A POSTCONVICTION PROCEEDING REQUIRING NO FILING FEE OR GRANT OF IN FORMA PAUPERIS STATUS

Appellant’s controlled substance conviction was overturned, and Appellant sought compensation under Minn. Stat. § 590.11 based on his exoneration. He filed a “Civil Complaint” with the district court, which was filed into a new file separate from his criminal case, as well as an affidavit to proceed in forma pauperis (IFP). His IFP application was denied, and Appellant appealed the denial.

The Court of Appeals first finds that the exoneration compensation procedure is a postconviction process. Section 590.11, the exoneration compensation statute, establishes a framework for compensating individuals who served time in prison after a wrongful conviction. The court notes that section 590.11 is included in chapter 590, which governs postconviction relief, and incorporates several postconviction procedures. Although Appellant titled his petition “Civil Complaint,” the filing made clear his intent was to obtain an order declaring eligibility under section 590.11. Therefore, as a type of postconviction, no filing fee was required for the 590.11 petition. The district court erred in denying Appellant’s IFP application. The matter is remanded for the district court to consider Appellant’s request for a declaration of eligibility for exoneration compensation. Aery v. State, A22-1123, N.W.2d , 2023 WL 2638240 (Minn. Ct. App. Mar. 27, 2023).