May 2019


A. CONSECUTIVE SENTENCES FOR ATTEMPTED MURDER AND CRIMINAL SEXUAL CONDUCT IS A DEPARTURE REQUIRING WRITTEN REASONS: Appellant pleaded guilty to attempted second-degree murder and second-degree criminal sexual conduct. The district court imposed consecutive sentences and a ten-year conditional release term on both sentences. Appellant filed a motion to correct his sentence, arguing the consecutive sentences was an unlawful upward departure and the conditional release term for the attempted second-degree murder offense was not permitted by law. The district court treated the motion as a postconviction petition and dismissed the petition. The court of appeals vacated the conditional release term for the attempted murder charge but affirmed the consecutive sentences. Appellant petitioned for review solely on the consecutive sentences issue.

Under the 2007 sentencing guidelines, in effect at the time of Appellant’s offense, when a defendant is convicted of “multiple current offenses… concurrent sentencing is presumptive.” Minn. Sent. Guidelines II.F (2007). However, under specific circumstances, consecutive sentences are “presumptive” or “permissive.” A consecutive sentence “in any other case constitutes a departure…” When departing from the guidelines, the district court must provide reasons that show “identifiable, substantial, and compelling circumstances to support” the departure. Minn. Sent. Guidelines II.D (2007). Section II.F lists seven categories of convictions that are eligible for permissive consecutive sentences, including the category that provides that “[m]ultiple current felony convictions for crimes on the list of offenses eligible for permissive consecutive sentences found in Section VI may be sentenced consecutively to each other.” Minn. Sent. Guidelines II.F.2. Section VI lists second-degree criminal sexual conduct as an offense eligible for permissive consecutive sentencing, but does not list attempted second-degree murder. The plain language of sections II.F.2 and VI do not authorize permissive consecutive sentences in this case, because only one of Appellant’s two felony convictions is contained on the list.

The sentences in this case were a departure and required the support of written reasons, which are absent here. Therefore, Appellant’s sentence was not authorized by law. The court of appeals is reversed, and the case is remanded to the district court for imposition of concurrent sentences. Bilbro v. State, 927 N.W.2d 8 (Minn. May 8, 2019).

B. MULTIPLE SENTENCES ALLOWED FOR VIOLATING OFP’S NO-CONTACT PROVISION AS TO MULTIPLE PROTECTED PERSONS: An OFP prohibited Appellant from contacting his former girlfriend and their minor child. He pleaded guilty to two counts of violating the OFP after meeting his former girlfriend and their child at a hotel to help them get a room. The district court sentenced him to 24 months on the first count and 12 months on the second, to be served consecutively. The issue on appeal is whether the district court erred by sentencing Appellant to consecutive terms of imprisonment for two counts arising from a single behavioral incident.

Generally, a person cannot receive multiple sentences for two or more offenses that were committed as part of a single behavioral incident, unless (1) there are multiple victims and (2) the sentences do not unfairly exaggerate the criminality of the defendant’s conduct. The Court of Appeals first concludes that there were multiple victims of Appellant’s conduct, rejecting Appellant’s argument that violating an OFP is a crime against the court, not against the protected persons. While the elements of the crime of violating an OFP do not include harm to a victim, harm to a victim need not be an element for the multiple-victim rule to apply, nor is direct harm to the victims necessary. Indirect harm and general societal harms with some personal components are sufficient victimization for the multiple-victim rule. Violation of an OFP can be prosecuted as criminal contempt, but that does not make it a crime against only the court. It is an offense against the protected persons and also contempt of court.

The court also finds that the imposition of multiple sentences did not exaggerate the criminality of Appellant’s conduct. It is a defendant’s burden to show a sentence unfairly exaggerates the criminality of his conduct. The court concludes Appellant failed to satisfy his burden. The district court is affirmed. State v. Alger, No. A18-1000, 2019 WL 2079356 (Minn. Ct. App. May 13, 2019).


A. “INTENT TO INTRUDE UPON OR INTERFERE WITH” PRIVACY WHEN ENTERING PROPERTY OF ANOTHER NOT REQUIRED: While staying at his brother’s home, Appellant gave beer to his minor niece and three of her minor friends, made sexual remarks to the girls, touched one of his niece’s friend’s inner thighs and buttocks, and was caught on the garage roof watching his niece’s friends undress. He was convicted of interference with the privacy of a minor, furnishing alcohol to a minor, and disorderly conduct. On appeal, he argues the evidence is insufficient to support his privacy interference conviction because the State did not prove he entered another’s property “with the intent to intrude upon or interfere with the privacy of a member of the household.” The State argued Appellant forfeited this argument because it was not raised before the district court. The Court of Appeals held Appellant did not forfeit the argument, but affirmed his conviction. Both parties challenge the Court of Appeals’ conclusions.

First, the Supreme Court holds that a sufficiency of the evidence challenge based on a statutory interpretation argument may be raised for the first time on appeal. As such, Appellant did not forfeit his sufficiency of the evidence argument here.

Next, the court considers Appellant’s argument that the State was required to prove that he had an intent to intrude upon the victim’s privacy when he entered his brother’s property, not just when he peeped at the girls undressing. The court interprets the interference with privacy statute under which Appellant was convicted, Minn. Stat. § 609.746, subd. 1(e)(2), which incorporates subd. 1(a). Subdivision 1(a) lists three elements of interference with privacy: (1) enters upon another’s property; (2) surreptitiously gazes, stares, or peeps in the window or any other aperture of a house or place of dwelling of another; and (3) does so with the intent to intrude upon or interfere with the privacy of a member of the household. The question is whether “does so” in clause (3) requires that an intent to intrude upon privacy be present for each of the acts set forth in clauses (1) and (2), or only those set forth in clause (2).

The court finds the intent requirement in subdivision 1(a) ambiguous. The court rejects a number of the parties’ suggested cannons of construction as inapplicable and unhelpful in resolving the ambiguity. Instead, the court looks to the statute’s legislative history and the purpose for enacting the statute, protecting personal privacy. The court ultimately concludes that the intent requirement of clause (3) in subdivision 1(a) applies only to the peeping conduct described in clause (2). That is, the State was required to prove only that Appellant had intent to intrude upon or interfere with the privacy of his victim when he peeped in the window while his victim was changing, not that he had this intent when he entered his brother’s property. The evidence was sufficient to satisfy this element, and Appellant’s conviction is affirmed. State v. Pakhnyuk, 926 N.W.2d 914 (Minn. May 8, 2019).


A. TRIBAL OFFICER HAS AUTHORITY TO DETAIN NON-INDIAN SUSPECTED OF VIOLATING DWI STATUTE ON RESERVATION: Appellant was called to the Red Lake Indian Health Service Hospital on the Red Lake reservation to pick up his brother and the nurse who spoke with him perceived him to be intoxicated. The nurse notified Red Lake Police Department Officer Bendel, who went to the hospital and saw Appellant drive up. Officer Bendel noted a number of indicia of intoxication and administered a PBT, which revealed a BAC of 0.121, and additional field sobriety tests. Officer Bendel then placed Appellant in handcuffs, Mirandized him, and placed him in the back of the squad car. Officer Bendel drove Appellant to the reservation boundary, where Appellant was transferred to Beltrami County Deputy Roberts. Deputy Roberts also observed indicia of intoxication upon taking custody of Appellant, drove him to the jail, and read the implied consent advisory. Appellant consented to a breath test, which reported a BAC of 0.11. Appellant argues he was unlawfully arrested by Officer Bendel, because Officer Bendel is not a “peace officer” for purposes of the DWI statute.

First, the Court of Appeals concludes a tribal police officer is not a “peace officer” under the DWI statute. Under Minn. Stat. § 169A.40, subd. 1, a “peace officer” may arrest a driver if there is probable cause to believe they have committed DWI, and the term “peace officer” is specifically defined in Minn. Stat. § 169A.03, subd. 18, to mean: “(1) a State Patrol officer; (2) University of Minnesota peace officer; (3) police officer of any municipality… or county; and (4) … a state conservation officer.” The State argues a tribal police officer falls under section (3), because an Indian tribe can be considered a “municipality.” The court rejects this argument and notes that no law or cooperative agreement exists to give Red Lake Band’s police officers concurrent jurisdiction to enforce state criminal law on the Red Lake Reservation.

Next, the court determines Officer Bendel did have authority to arrest Appellant for violating Minnesota’s DWI statute on the Red Lake reservation. Indian tribes retain authority to prosecute Indians for violations of the tribe’s criminal code that are committed on the reservation, but cannot prosecute a non-Indian for violating the tribe’s criminal code if the crime is victimless or if the victim is a non-Indian. Generally, absent a special grant of jurisdiction, states may exercise jurisdiction over criminal offenses on an Indian reservation only to the extent that the federal government and a tribe may not do so. Neither the United States Supreme Court nor Minnesota’s courts have considered whether a state may prosecute a non-Indian for committing a state DWI offense on an Indian reservation. However, courts in other states have held that a state does have such authority. The court notes that, because there is no particular victim of Appellant’s DWI offense, the State has jurisdiction to prosecute him in this case.

It follows, then, that the State may enforce its DWI laws on the Red Lake reservation if such an offense is committed by a non-Indian and, conversely, that the Red Lake police is authorized to enforce its own impaired driving laws on the reservation if such an offense is committed by an Indian. However, an officer will not immediately know whether a driver is an Indian or non-Indian, and courts have held that tribal officers may stop a driver long enough to ascertain whether they are an Indian or non-Indian. If a non-Indian, case law makes clear that the tribal officer has authority to detain a violator and deliver them to state or federal authorities.

Here, it is undisputed that Officer Bendel had probable cause to believe Appellant violated Minnesota’s DWI statute. He was authorized to detain Appellant, drive him to the reservation boundary, and delivery him to the deputy sheriff, because of both tribal law enforcement’s general power to restrain and eject those who disturb public order on the reservation and more specific power to detain a non-Indian who has committed a criminal offense that may not be prosecuted by the tribe and transport him to the proper authorities. Thus, the district court did not err in denying Appellant’s motion to suppress evidence. State v. Thompson, No. A18-0545, 2019 WL 2079426 (Minn. Ct. App. May 13, 2019).


A. COURT MUST INSTRUCT JURY ON PROPER USE OF RELATIONSHIP EVIDENCE ADMITTED UNDER MINN. STAT. § 634.20, UNLESS DEFENDANT OBJECTS: At Appellant’s trial for first-degree burglary and fourth-degree criminal sexual conduct, the district court admitted relationship evidence under Minn. Stat. § 634.20. The victim and a number of other witnesses testified that Appellant repeatedly verbally and physically abused her during their relationship. Appellant did not request and the district court did not give the jury a limiting instruction as to the proper use of this evidence. On appeal, Appellant argues the district court committed plain error by failing to sua sponte instruct the jury on the proper use of the 634.20 evidence.

At the time of Appellant’s appeal, case law on this issue was unclear. In State v. Word, 755 N.W.2d 776 (Minn. Ct. App. 2008), the Court of Appeals said failure to sua sponte instruct the jurors on the proper use of 634.20 evidence is plain error. Later, in State v. Melanson, 906 N.W.2d 561 (Minn. Ct. App. 2018), decided when Appellant’s appeal was still pending, the Court of Appeals held “the district court did not plainly err in failing to provide a limiting instruction sua sponte to the jury regarding the admission of [634.20] evidence.” Given these conflicting opinions, the law at the time of appellate review of Appellant’s case did not clearly require a district court to sua sponte instruct the jurors on the proper use of 634.20 evidence. As such, Appellant did not establish an error that was plain.

The Supreme Court takes this opportunity to clarify the law and adopts a new rule, applicable to future cases: “[W]hen a district court admits relationship evidence under Minn. Stat. § 634.20, over a defendant’s objection that the evidence does not satisfy section 634.20, the court must sua sponte instruct the jurors on the proper use of such evidence, unless the defendant objects to the instruction by the court.” State v. Zinski, 927 N.W.2d 272 (Minn. May 15, 2019).


A. TRANSFER OF CANNABIS OIL FROM ONE WHOLLY OWNED SUBSIDIARY OF PARENT COMPANY TO ANOTHER IS A TRANSFER TO ANOTHER “PERSON”: Vireo Health, LLC (VH) wholly owns two subsidiary companies: Minnesota Medical Solutions, LLC (MMS) and Vireo Health of New York, LLC (VHNY). MMS is one of two companies in Minnesota allowed to manufacture and distribute medical marijuana, while VHNY does the same in New York. To resolve a supply issue with VHNY, the Chief Security Officer and Chief Medical Officer of MMS transferred 5.6 kilograms of cannabis oil from MMS to VHNY and falsified inventory records for both MMS and VHNY. The MMS officers were charged with intentionally transferring medical cannabis to a person other than allowed by law, in violation of Minn. Stat. § 152.33, subd. 1.

The district court certified this question, an issue of first impression: Are two wholly owned sister subsidiaries of the same parent company legally one “person,” such that a transfer of medical marijuana from one to another does not constitute a transfer to another “person”? The Court of Appeals holds that sister wholly owned subsidiaries of the same parent corporation are separate “persons” under the plain language of Minn. Stat. § 152.33, subd. 1.

Section 152.33, subd. 1, is not ambiguous and includes limited liability companies in the definition of “person.” Section 152.33, subd. 1, states that “a manufacturer or an agent of a manufacturer who intentionally transfers medical cannabis to a person other than a patient, a registered designated caregiver or… a parent or legal guardian of a patient is guilty of a felony…” Section 152.01, subd. 13, defines a “person” as “every individual, copartnership, corporation or association of one or more individual.” With this definition of “person,” section 152.33, subd. 1, unambiguously prohibits the transfer of medical marijuana to an unauthorized limited liability company. There is no statutory exemption for the transfer to a separate corporation with shared ownership. State v. Owens, No. A18-1800, 2019 WL 2167730 (Minn. Ct. App. May 20, 2019).