May 2020

IMPLIED CONSENT

WHETHER AN ADVISORY SUFFICIENTLY INFORMS A PERSON THAT REFUSAL TO SUBMIT TO A BREATH TEST IS A CRIME DEPENDS ON WHETHER THE ADVISORY, CONSIDERED IN ITS CONTEXT AS A WHOLE, IS MISLEADING OR CONFUSING

Appellant was arrested for DWI and read a breath test advisory that stated: “This is the breath test advisory… Minnesota law requires you to take a test to determine if you are under the influence of alcohol. Refusal to take a test is a crime…” Appellant was then offered and submitted to a breath test, revealing a BAC over the legal limit, and his driving privileges were revoked. Appellant sought judicial review of the revocation, arguing the officer did not properly inform him of his rights and the consequences of taking or refusing a test, because Minn. Stat. § 169A.51, subd. 2, provides that “refusal to submit to a breath test is a crime,” but the officer told Appellant refusal to submit to “a test” is a crime. The district court sustained the revocation and Appellant appealed.

Section 169A.51, subd. 2, unambiguously requires officers to “inform” a person “that refusal to submit to a breath test is a crime.” To “inform” a person requires that officers make the person aware that refusal to submit to a breath test is a crime. In the context of advisory given in this case, the Court of Appeals concludes the officer did sufficiently inform Appellant that refusing to take a breath test would be a crime. The officer called the advisory a “breath test advisory,” asked Appellant to submit to only a breath test, and did not mention or request blood or urine tests. Moreover, no legal authority requires officers give a verbatim recitation of section 169A.51, subd. 2. The district court properly sustained the revocation of Appellant’s driving privileges. McCormick v. Comm’r of Pub. Safety, A19-1466, 2020 WL 2108103 (Minn. Ct. App. May 4, 2020).

FIREARMS

WHETHER A FLARE LAUNCHER IS A FIREARM DEPENDS ON WHETHER THE DEFENDANT USED OR INTENDED TO USE IT AS A WEAPON

Respondent was charged with possession of a firearm by an unauthorized person after police responded to a theft report and found Respondent with a loaded flare launcher. The district court granted Respondent’s motion to dismiss the firearm charge, concluding a flare launcher is not a firearm because it is not designed to be used as a weapon.

The Court of Appeals holds that whether a flare launcher is a firearm is a question of fact for trial and depends on the defendant’s use or intended use of the flare launcher. Respondent was charged under Minn. Stat. § 624.713, subd. 1(2), which prohibits a person previously convicted of a crime of violence from possessing a “firearm.” “Firearm” is not defined, but case law makes clear that it is a “weapon that uses explosive force.”
The district court properly determined that a flare launcher meets the “explosive force” requirement, because it propels a projectile by the combustion of gunpowder or other explosive. A flare launcher is not designed as a weapon, but may become one depending on how it is used. The record does not make clear how Respondent intended to use the flare launcher, so a fact issue remains for resolution at trial. Reversed and remanded. State v. Glover, A19-1656, 2020 WL 2108108 (Minn. Ct. App. May 4, 2020).

SENTENCING

SENTENCES PERMITTED FOR BOTH DRIVE-BY SHOOTING AT AN OCCUPIED VEHICLE AND SECOND-DEGREE ASSAULT OF A VICTIM OUTSIDE THE VEHICLE

During an argument with C.L.G., Appellant fired a handgun in C.L.G.’s direction, but hit the vehicle next to C.L.G., containing two adults and a child. Appellant pleaded guilty to drive-by shooting at an occupied vehicle, second-degree assault against C.L.G., and reckless discharge of a firearm. He was sentenced to 48 months for the drive-by shooting and 36 months for the assault. On appeal, the question is whether the drive-by shooting and assault offenses arose out of a single behavioral incident and, therefore, whether the district court erroneously imposed multiple sentences. The Court of Appeals affirmed Appellant’s sentences, concluding that the offense of drive-by shooting at an occupied vehicle does not constitute an offense against each occupant of the vehicle, so sentences for both the drive-by shooting and assault convictions were not prohibited, even if both arose out of a single behavioral incident involving the same victim.

Minn. Stat. § 609.035, subd. 1, states that a person may be punished for only one offense if their “conduct constitutes more than one offense under the laws of this state.” Case law has clarified that “a person may be punished for only one of the offenses that results from acts committed during a single behavioral incident and that did not involve multiple victims.” The Supreme Court previously held in Ferguson, 808 N.W.2d 586 (Minn. 2012), that section 609.035 does not prohibit multiple sentences for drive-by shooting when the same conduct (the shooting) also constitutes assault. Ferguson involved counts of second-degree assault and drive-by shooting at an occupied building. The court held that a single count of drive-by shooting at an occupied building does not constitute a crime against each building occupant.

Here, the Supreme Court extends Ferguson’s holding to the offense of drive-by shooting at an occupied vehicle. Drive-by shooting at an occupied building and drive-by shooting at an occupied vehicle share essentially identical elements and the drive-by shooting statute does not distinguish between the two offenses. Appellant’s “sentences comply with [the] holding in Ferguson that a single count of drive-by shooting is effectively a victimless crime.” Thus, Appellant received one sentence for his victimless offense and one for his offense against C.L.G. The district court properly sentenced Appellant for both offenses. State v. Branch, 942 N.W.2d 711 (Minn. May 6, 2020).

WHEN DETERMINING IF A PRIOR CONVICTION HAS DECAYED, THE CURRENT OFFENSE DATE MUST BE ESTABLISHED BY THE FACTFINDER OR THROUGH THE DEFENDANT’S ADMISSION

Appellant pleaded guilty to one count of first-degree criminal sexual conduct in 2019 for conduct the complaint alleged occurred between 2012 and 2018. Appellant argued it occurred in 2015. He had a prior first-degree criminal sexual conduct conviction from 1994, for which he received a stay of imposition that expired on March 11, 2014, and for which he received three criminal history points. On appeal, Appellant argues that he is entitled to resentencing, because a change in the sentencing guidelines regarding when a prior conviction decays reduces his criminal history score.

The sentencing guidelines were amended in 2019, before Appellant’s case was final. The decay factor section now provides that, when computing the criminal history score, “a prior felony sentence or stay of imposition following a felony conviction must not be used if all of the following, to the extent applicable, occurred before the date of the current offense: (1) the prior felony sentence or stay of imposition expired or was discharged; (2) a period of fifteen years elapsed after the date of the initial sentence following the prior conviction; and (3) if the prior felony sentence was executed, a period of fifteen years elapsed after the date of expiration of the sentence.” Minn. Sent. Guidelines 2.B.1.c. Requirement (3) does not apply to Appellant, as his sentence for the 1994 conviction was not executed, and requirement (2) is met. The parties disagree as to whether Appellant’s stay of imposition in 1994 was discharged before the date of the current offense.

Appellant pleaded guilty to a single offense occurring sometime between January 1, 2012, and March 26, 2018, but he did not specifically admit to committing an act between January 1, 2012, and March 11, 2014, the time period before he was discharged from probation on his 1994 conviction. A specific offense date is necessary to complete the decay factor analysis. No jury made a finding as to the specific offense date, nor did Appellant admit to an offense date. The case is reversed and remanded for a determination of Appellant’s current offense date and resentencing. State v. Woods, A19-1061, 2020 WL 2517077 (Minn. Ct. App. May 18, 2020).

SEARCH AND SEIZURE

EXAMINATION OF A HOTEL REGISTRY IS A SEARCH THAT MUST BE SUPPORTED BY A REASONABLE, ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY

Without a warrant or any individualized suspicion of criminal activity, police obtained a hotel guest list from the hotel’s clerk and learned Appellant had rented a room for six hours 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 suspicious paychecks, a large amount of cash, and check-printing paper. 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. The Court of Appeals affirmed, holding Appellant could not challenge the police’s examination of the guest registry because he did not have a reasonable expectation of privacy in it.

First, the Supreme Court determines that law enforcement’s suspicionless examination of a guest registry is a search. A person’s very presence at a hotel may be a sensitive piece of information, information that affords that person a reasonable expectation of privacy in the hotel’s guest registry. Although the registry includes seemingly public information, such as a guest’s name and address, the act of recording that information in the registry “creates sensitive location information.”

Second, the court holds that law enforcement must at least have a reasonable, articulable suspicion to search a guest registry’s sensitive location information. This standard strikes the appropriate balance between an individual’s privacy rights and “the government’s significant interest in proactively addressing the serious criminal behavior that often takes place in hotels.”

Third, the court examines Minnesota’s hotel guest registry statutes to determine if they give law enforcement unfettered access to guest registries in violation of the Constitution. Minn. Stat. § 327.12 requires that registries be “open to the inspection of all law enforcement officers,” but is silent as to what standard law enforcement must meet to search a registry. Section 327.10 requires that registries “be… always accessible for inspection by proper authorities,” which the court interprets to mean that the registries be accessible at any time of day, not on every occasion regardless of law enforcement’s suspicion. Thus, the court finds the guest registry statutes, sections 327.10-.13, constitutionally valid.

Lastly, the court addresses the admissibility of the evidence seized from Appellant’s hotel room. It is undisputed that law enforcement had no individualized suspicion when they examined the guest registry at Appellant’s hotel, making the search of the registry in this case illegal. The court finds the evidence subsequently found in Appellant’s hotel room to be fruit of the poisonous tree. If police had not illegally searched the registry, they could not have run a background check, would not have been able to find Appellant’s room and perform a “knock and talk,” and could not have applied for a search warrant, all of which was done immediately after the guest registry search. Therefore, the district court erred in admitting the evidence found in Appellant’s hotel room. As this evidence was “the foundation of [Appellant’s] conviction,” the district court’s error was not harmless beyond a reasonable doubt. The case is reversed and remanded to the district court. State v. Leonard, 943 N.W.2d 149 (Minn. May 13, 2020).

COMPETENCY

COURT OF APPEALS MUST DEFER TO DISTRICT COURT’S FACTUAL FINDINGS MADE AS PART OF A COMPETENCY DETERMINATION BY APPLYING CLEAR ERROR REVIEW TO THOSE FINDINGS

A competency hearing was held in Appellant’s fleeing a peace officer case, at which three experts testified in that Appellant suffered from cognitive impairment but disagreed as to its effect on his competency. Relying on the court-appointed evaluator, the district court found Appellant competent. The district court found the court-appointed evaluator’s opinion most convincing because she had performed three forensic evaluations, thoroughly explained her reasoning, and focused her evaluations on Appellant’s ability to rationally consult with his attorney, comprehend court proceedings, and participate in his defense. Appellant was convicted after a bench trial.

The primary issue is how the appellate court is to review the district court’s finding regarding Appellant’s competency. The Minnesota Supreme Court previously established the following standard (the “Ganpat standard”): “We independently review the record to determine if the district court gave ‘proper weight’ to the evidence produced and if ‘its finding of competency is adequately supported by the record.” The Court of Appeals concludes that this standard requires the appellate court to accept the district court’s factual findings after a hearing, unless they are clearly erroneous.

The Ganpat standard creates a bifurcated analysis, which the Court of Appeals characterizes as follows: (1) Did the facts require the district court to inquire further into a defendant’s competency? (2) Did the district court’s inquiry uncover facts sufficient to support its findings? The second question in the analysis highlights a clear error review of the district court’s factual determination made after a hearing on disputed evidence. However, no deference is given to the district court’s decision as to the first question, because this preliminary determination is made as a matter of law and based on undisputed facts.

Applying this standard of review to Appellant’s case, the court concludes that the record adequately supports the district court’s competency decision. State v. O’Neill, No. A19-0803, 2020 WL 2643648 (Minn. Ct. App. May 26, 2020).

EVIDENCE

IMPEACHMENT EVIDENCE IS MISUSED IF THE PARTY WHO CALLED A WITNESS WAS AWARE THE WITNESS WOULD RECANT BEFORE THE WITNESS TOOK THE STAND

Appellant was convicted of aiding and abetting second-degree murder, attempted murder, and assault, charges which arose from a gang-related drive-by shooting from a car driven by Appellant. At trial, J.G., Appellant’s cell mate, testified. J.G. previously told investigators Appellant knew the shooting would take place and had given J.G. a letter stating the opposite for J.G. to give to police as his own writing. J.G. gave that letter and a second letter, written by J.G. on Appellant’s behalf and consistent with the first letter, to the investigator. J.G. also told investigators he witnessed an argument between Appellant and the shooter after the shooting, during which Appellant yelled at the shooter because he was supposed to get out of the car before shooting. At trial, however, J.G. denied making these statements and testified he had not met Appellant before they shared a jail cell. Over the defense’s objection, the district court permitted the State to continue questioning J.G. to elicit what the court characterized as “proper impeachment evidence.” The investigator who J.G. spoke to testify about J.G.’s statements and the letters J.G. gave to the investigator were also admitted into evidence. The jury was instructed that J.G. 's testimony was impeachment, not substantive, evidence, and that the content of the letters was to be used to ascertain the author of the first letter. Appellant appeals from the denial of his postconviction petition, arguing the state violated State v. Dexter, 269 N.W.2d 721 (Minn. 1978), which precludes calling a witness for the sole purpose of impeaching the witness. The parties agree the State did not know J.G. would recant his statements to police when called to testify, but Appellant argues the district court should have stopped questioning of J.G. once it was clear J.G. had chosen to recant.

The Court of Appeals concludes that no Dexter violation occurred. The court holds that a Dexter violation occurs only if the witness signifies an intent to recant prior to taking the stand. Here, there is no indication the State was aware J.G. would recant or called J.G. for the sole purpose of impeaching him. The appellate courts have not extended Dexter to include situations in which a party’s witness does recant at trial but is still questioned thereafter, and the Court of Appeals declines to do so. Thus, the district court did not err by allowing the State to continue questioning J.G. after his recantation.

The court also finds that J.G. 's prior inconsistent statements to police were not given under oath and, therefore, were not admissible as substantive evidence. However, Minn. R. Evid. 607 permits their admission for impeachment purposes only. The court agrees with the postconviction court that J.G. 's out-of-court statements were admitted for impeachment, rather than substantive, purposes. The court also affirms the postconviction court’s admission of the first letter J.G. gave to police for the jury to use in ascertaining who wrote the letter. The letter was authenticated and relevant, and the jury was instructed not to use the contents of the letter as substantive evidence.

The court also concludes that State misstated the law regarding the presumption of innocence, but that Appellant’s substantial rights were not affected. The court then rejects Appellant’s arguments regarding the improper admission of other evidence and the exclusion of the testimony of two defense witnesses, finding the postconviction court did not abuse its discretion. The denial of Appellant’s post conviction petition is affirmed. Moore v. State, A19-1522, 2020 WL 2517081 (Minn. Ct. App. May 18, 2020).