Tag: sexual assault lawyer

CASE LAW UPDATE:  Whether the evidence was sufficient for defendant’s threats of violence conviction?

Defendant was convicted of threats of violence against his daughter, and, his son.  Defendant was also convicted of child endangerment against his daughter, and, his son.  Defendant was sentenced on both the threats of violence convictions and child endangerment convictions.  Defendant appealed his convictions and sentences.  On appeal, defendant argued that (1) his convictions for threats of violence must be reversed on the grounds of  insufficient evidence; and (2) that his convictions for threats of violence and child endangerment as to his two children arose out of single behavioral incident, and that therefore, the child endangerment sentences must be vacated under Minnesota Statute §609.035.

Section 609.035 of the Minnesota Statutes is known as the double jeopardy statute.  Generally, it prevents a defendant from being punished twice for the same crime.

Historically, the crime of “threats of violence,” was called “terroristic threats.”  More recently, there has been an affirmative effort to re-name this crime “threats of violence,” so that people charged or convicted of this crime will not be confused with having engaged in terrorism related criminal activity.  Generally speaking, threats of violence can be a threat to commit a crime of violence, or, a threat made in disregard of this risk of causing a person terror.

Noting that defendant threatened to shoot the gas meter and mentioned a bomb, the Minnesota Court of Appeals concluded that the evidence was sufficient for threats of violence against his daughter, but given the lack of evidence as to what his four hear old son heard, said conviction must be vacated.  Further, the threats of violence and child endangerment offenses arose out of single behavioral incident whereby the latter conviction against his daughter must be vacated.

State v. Bolster, A21-0373, Dakota County.

Minneapolis Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

CASE LAW UPDATE:  Whether defendant did not violate the interference with privacy statute when he used his phone to video his girlfriend naked without her consent?

The defendant used his cell phone to videotape his girlfriend while naked without her consent.  Defendant admitted to using his cell hone to record a woman while she was naked in her bed without her consent, and knowing that she likely would not have consented.  He was convicted of violating the interference with privacy statute, §609.746, subd. 1(b).  He appealed.  The question in this appeal was not whether defendant’s conduct was wrong, but instead, whether the statute defendant was found guilty of violating, Minnesota Statute secion 609.746, subdivision 1 (b), covers his conduct.  More specifically, whether the statutory requirement that an indvididual “use[] any device for . . . reocrding . . . through the window or any other aperture of a house or place of dwelling of another” is satisfied when a person surreptitiously records another person in the same room with a cell phone camera.

The Minnesota Supreme Court held that defendant did not violate the statute when he used a cell phone camera to record a woman without her consent while in the same room with her, because it did not meet the statutory requirement of using a recording device through the window or any other aperture of a house or place of dwelling.

Commentary:  A very interesting case.  So, Ladies and gentlemen beware!  Although clearly wrong, under this case, a person can secretly videotape you with their cell phone, when you are not dressed, and not be violating this statute.  Although generally we definitely have way too many laws, rules, and criminal laws, it appears that a statute is needed criminalizing secret videotaping of another, without their consent, when they are naked.

State v. McReynolds, A20-1435, Minnesota Supreme Court.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

CASE LAW UPDATE:  Whether pornography between children juveniles violates the law?

Juvenile defendant was adjudicated delinquent for disseminating and attempting to aid and abet the dissemination of pornographic work, fifth degree criminal sexual conduct, and indecent exposure.  Juvenile child defendant had sent multiple nude pictures of himself to a 13 years old victim, and asked the victim to send nude pictures of herself.  Juvenile defendant had done so via Snapchat.  Defendant appealed.  On appeal, defendant argued that (1) the pornographic work statute does not prohibit the act of a juvenile disseminating a pornographic picture of themselves; and therefore the two (2) dissemination of pornographic work adjudications should be reversed; (2) the trial court erred by failing to obtain juvenile defendant’s person waiver of his right to testify and, therefore, all adjudications should be reversed; (3) the trial court erred by ordering juvenile defendant to comply with the predatory offender registration statute; and (4) the trial court erred by entering adjudications for 5th degree criminal sexual conduct and an included offense of indecent exposure, and therefore, one adjudication should be reversed.

The Minnesota Court of Appeals held that (1) the plain language of the pornographic work statute prohibits juveniles from creating and sending pornographic work of themselves; (2) the trial court did not err by failing to obtain juvenile defendant’s personal waiver of his right to testify; (3) ordering juvenile defendant to comply with the predatory offender registration statute was proper; (4) because indecent exposure is an included offense of 5th degree criminal sexual conduct, the trial court erred by entering adjudications for both offenses.  Affirmed in part, reversed in part, and remanded.

In re Welfare of J.C.L., A21-1018, Redwood County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Commentary:

In this case the juvenile defendant raised an interesting legal issue:  whether the criminal child pornographic work statute applied to child engaging in sending pornographic work to each other.

In Minnesota, the law distinguishes between crimes that are committed by children versus adults.  There is a general rule that crimes committed by children should be handled in the best interests of child.  In contrast, for crimes committed by adults, there are four (4) primary purposes of the law:  (1) to punish; (2) to deter people from committing crimes; (2) to rehabilitate, so that people will not continue to commit crimes; (3) to incapacitate, whereby people are locked up in a prison, so that they are not able to commit crimes.  In addition, another policy of juvenile law is that the records of offenses of juveniles are confidential, so that mistakes made by children do not haunt them into their adult lives.

A typical child pornography case involves an adult possessing child pornography.  In the State courts, these cases are usually punished by sentencing the defendant to prison for a term of years.  In federal court, the sentences are typically much longer, usually running 20 to 40 years.

So, in this case, the people involved, both the offender, and the victim, were children.  So, the juvenile defendant raised the issue of whether the legislature actually intended the child pornography criminal statute to be applied against children.  The Minnesota Court of Appeals held that it did.  It is probably likely that this case will be appealed to the Minnesota Supreme Court, in order to finally determine the issue.

CASE LAW UPDATE:  Was there sufficient evidence to establish that defendant knew he was a prohibited person?    

Defendant was convicted of illegal possession of a firearm.  He appealed.  On appeal, he argued that he did not know he was a prohibited person.  There was sufficient evidence that the defendant knew he possessed a firearm while he was subject to a no contact order involving an intimate partner.  Accordingly, defendant qualified as a prohibited person under the statute.  Affirmed.

This is a federal case.   There are two jurisdictions where a person can be charged with unlawful possession of a firearm.  The first is in State court.  This is the most common.  The second is federal court.  The sentences in federal court for crimes is usually much more severe than in state court.

Interestingly in this case, defendant had not been previously convicted of a felony, where a person becomes prohibited from possessing firearms.  Herein, in an unusual case, defendant became prohibited from possessing firearms because he was subject to a no contact order.  The case does not specify whether it was a no contact order in a criminal case, a DANCO, which is a domestic assault no contact order, a harassment restraining order, or an order for protection.  In Minnesota, if a person violates a DANCO, a domestic assault no contact order, which was issued in a State court, then a new criminal charge can be brought against a defendant, in addition to whatever charges the defendant was facing in the original criminal case.  Generally, under federal law, when a person is subject to an order for protection, which involves a romantic partner, then a person becomes prohibited from possessing a firearm.  This is what happened in this case.  Then, evidently, the law required that it be proven that defendant knew he was prohibited from possessing a firearm because of the issuance of a no contact order.

In this case, defendant was originally charged criminal with being a prohibited person in unlawful possession of a firearm.  The original charges were brought in the trial court.  In federal court, the trial court is called a District Court.  In State court, the trial court is just called a trial court.  In the federal court system, there are three levels of courts.  The first is the District Court.  The next level in Minnesota is the Eighth Circuit Court of Appeals.  The next final level is the United States Supreme Court.  The District Court is the level where a trial to a jury would occur, and, where guilt or innocence is determined.  If a person is convicted by a jury, and if a defendant does not believe the conviction is valid for some reason, the the defendant can appeal to the Eighth Circuit Court of Appeals.  That is what the defendant did in this case.  He appealed to the Eighth Circuit Court of Appeals.  As for attorney fees, there would be attorney fees charged at the District Court level.  And, if a person wanted to appeal, there would be additional attorney fees charged for an appeal.  In this case, defendant argued that the evidence was sufficient to prove he had knowledge of his prohibited status.  The Eighth Circuit Court of Appeals in this case concluded that the defendant did know of his prohibited status, and, that the government proved up that evidence.  The Eighth Circuit Court of Appeals therefore upheld defendant’s conviction.

United States v. Marin, 21-1016, Benton, J.  Appealed from United States District Court, Southern District of Iowa.

Minneapolis Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

CASE LAW UPDATE:  Whether a District Court has the authority to order restitution for the clean up costs for a methamphetamine lab?    

Defendant was convicted of possession and manufacturing of methamphetamine.

Manufacturing of methamphetamine typically involves a location where a defendant makes methamphetamine.  Making methamphetamine involves purchasing various chemicals and then  heating and cooking them, whereby they develop into methamphetamine.  They are then usually sold in large amounts to a middle person, who then sells them to a lower person, which lower person then sells them to individual users.  The place of manufacture or cooking of methamphetamine can usually be rather dangerous, and  there is is usually a risk of the building in which they are cooked blowing up.  Also, the cooking process can leave a high amount of toxic chemicals in the air and at the location, which thereafter needs sensitive and extensive clean up.  Therefore, to clean up a former methamphetamine lab can be expensive.  Hence, the issue of restitution can arise in a criminal case involving the manufacture of methamphetamine.

Defendant appealed his sentence.  The Eighth Circuit Court of Appeals held that a District Court has the authority to order restitution for the clean up costs for a methamphetamine lab.

The issue of restitution is typically determined after conviction and sentencing.  The State’s prosecutor, in Minnesota, known as the County Attorney, will file a request for restitution.  The State will often say the amount of restitution it is seeking the the motion seeking restitution.  The defendant then has these opportunity to challenge the amount of restitution sought.  If the amount is not challenged, then usually the amount of restitution becomes part of the defendant’s conditions of probation:  he is given an allotted amount of time to pay the restitution owed.  If the defendant challenges the amount sought by the State, then the Court will hold a contested restitution hearing to determine the amount of restitution the defendant will be ordered to pay.

United States v. Sarchett, 21-3803, per curiam.  Appealed from United States District Court, Northern District of Iowa.

Minneapolis Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

CASE LAW UPDATE:  Whether the trial court did not err in its sentence of defendant on threats to assault and murder a federal official?   

Defendant pleaded guilty to threatening to assault and murder a federal official in federal court.  It may be noted that generally speaking, the more serious cases are prosecuted in federal court; additionally, the sentences in federal court are generally much longer than those in state court.  He was sentenced.  Defendant appealed his sentence.  Defendant argued his sentence and special conditions of supervised release were substantively unreasonable.  The Eighth Circuit Court of Appeals held that the above Guidelines sentence was substantively reasonable given defendant’s persistent threats, and, his efforts to recruit others to commit murders.  Additionally, the two special conditions ofrequiring that he participate in a substance abuse program, and, that he receive mental health treatment, were proper, because the record adequately supported the conditions.  A general rule of thumb is that pursuant to due process of law, conditions of a sentence should be related to the underlying criminal conduct.  Additionally, if there are aggravating circumstances in a case, that will support a longer prison sentence.  Affirmed.

United States v. Jackson, 21-1744, per curiam.  Appealed from United States District Court, Eastern District of Arkansas.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

CASE LAW UPDATE:  Whether defendant met his burden of proving physical inability to test?

Defendant challenged the implied consent revocation of his drivers license, following a DWI.  There are two (2) cases in every single DWI case.  And, by the way, DWI and DUI are the same thing.  In a DWI case, there is a criminal case, where the primary issues are:  (1) whether the defendant will be convicted of anything, and if so, what; (2) will there be any jail time? (3) fine; and (4) length and terms of probation.  Frequently, in a DWI DUI case, a defendant will be required to obtain a chemical use assessment and follow recommendations, and, abstain from using alcohol, and not drive without a valid license and insurance.  In every DWI DUI case, there is also a civil implied consent case, where the issue is usually over whether the defendant’s drivers license will be revoked.  A filing fee must be paid, and the trial is to a court, not a jury.  On appeal, defendant argued that the trial court erred by asking questions during the hearing and that he satisfied his burden of proof by presenting sufficient evidence of his physical inability to test.  The Minnesota Court of Appeals concluded that the trial court did not commit reversible error by inquiring about defendant’s prior DWI charges during the implied consent hearing, and, did not clearly err in finding that defendant failed to meet his burden of proving the affirmative defense of physical inability.  Affirmed.

Jackson v. Comm’r of Pub. Safety, A21-0716, Ramsey County.

Minneapolis Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

CASE LAW UPDATE:  Whether allowing a police officer to testify via Zoom did not violate defendant’s 6th Amendment right of confrontation when there was a known exposure to COVID, as opposed to a general public concern?

The issue is whether defendant’s 6th Amendment right of confrontation was violated when the police officer, who was in quarantine due to a known exposure to COVID, was allowed to testify via Zoom?  The Minnesota Court of Appeals held that although the 6th Amendment right of confrontation was implicated, it was not violated by allowing the police officer to testify via Zoom, where he was in quarantine due to a known exposure to COVID.  In contrast, where there is merely a generalized concern regarding the COVID pandemic such does not sufficiently further an important public policy so as to permit dispensing with a criminal defendant’s right to confront a witness face to face in court.

State v. Tate, A21-0359, Becker County.

Minneapolis Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

COMMENTARY:  very bad policy.  They cannot start making exceptions like this to the 6th Amendment right of confrontation.  They should have continued the trial until the officer was out of quarantine.  We cannot fundamentally change Constitutional rights because of COVID.

Whether the trial court did not abuse its discretion in denying petition for gun rights restoration?

Petitioner brought a petition to restore his Second Amendment rights to possess firearms.  The trial court denied his petition.  Petitioner appealed.  On appeal, Petitioner argued that the trial court erred in concluding that he failed to show good cause to restore his gun rights.  For gun rights restoration, a petitioner has to show two factors.  First, petitioner must show that he is no longer in physical confinement.  This usually is not an issue.  The second factor is good cause.  The test for good cause is primarily whether the evidence shows that petitioner is not dangerous.

The Minnesota legislature essentially took 25 crimes and labeled them as “crimes of violence.”  The legislature declared that people convicted of these crimes indicates dangerousness and thereby provided that said persons should lose their gun rights for life.  In the very same statute however, the legislature provided for a petition to restore gun rights.  It would make sense that if the law provided that a person’s gun rights should be taken away because the evidence indicates dangerousness, that if the person subsequently becomes a law abiding citizen and the evidence shows a lack of dangerousness, that the person’s gun rights should be restored.

In the instant case, the Minnesota Court of Appeals held that the trial court did not abuse its discretion when it determined that the public safety concerns outweighed Petitioner’s private interests.

State v. Ramirez, A21-0073, Brown County.

Minnesota Second Amendment Lawyer Lynne Torgerson was NOT attorney of record in this case.

Whether the denial of defendant’s petition for postconviction relief was not erroneous because the evidence was not newly discovered evidence?

Defendant and her boyfriend were convicted of murder.  Defendant brought a petition for post conviction relief.  The trial court denied her petition without granting her a hearing.  Defendant Onyelobi appealed the denial of her petition for postconviction relief without a hearing.  The Minnesota Supreme Court held that her co-defendant’s affidavit that he did not tell her that he was going to shoot the victim was not newly discovered evidence because she was present when the events the evidence purports to describe occurred.  Therefore, the defendant could have previously raised this issue, and failed to do so.  A defendant is required to raise all known issues in the first instance, the first appeal, the first petition for post conviction relief.  If a defendant fails to do so, and then later files a second petition for post conviction relief, said petition will be denied on the grounds that defendant should have previously raised the issue in her prior petition for post conviction relief.

State v. Onyelobi, A21-0517, Hennepin County, Minnesota Supreme Court.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.