State v. Ford

jury from the that its withdrawal acter the harmful effects

cannot remove Minnesota, Respondent, STATE admission, a new trial by its caused v. granted. should be 249, 187 290 Minn. Bergland, v. FORD, Appellant. A. James videotape (1971). was ini- N.W.2d 622 No. CX-85-719. P.K.D.’s tially only to corroborate admitted the court realized testimony. After Appeals of Minnesota. Court to inadmissi- videotape made reference the great it efforts to reduce ble matters made Nov. promptly court instructed prejudice. The 31, 1986. Review Granted Jan. it, disregard interviewed each jury to in- individually to determine if that juror followed, gave

struction could be jury

additional instruction to their evidence should not affect

stricken ruling on motion for a new

decision.

trial, concluded, after court trial analysis, that

lengthy and deliberate substantially prejudiced

jury was not

against admis- Danielson the erroneous videotape.

sion agree. prejudicial

We con- cannot videotape such that no

tent of the miti- jury to the could

curative instructions tape allega-

gate its effect. The contained crimes,

tions of a of several other some

despicable socially unacceptable na- pros-

ture. are also concerned with the We bringing

ecutor’s deliberate conduct Jahnke, jury.

evidence before See Supreme

N.W.2d at 611. As Minnesota Gegen, v. 275 Minn.

Court stated (1967): N.W.2d police persist

If officers prosecutors and indirectly a trial trying inject into they they cannot

matters which know directly only solution is to

introduce try

let case them over. remanding a new

Because we are

trial, address the claim of we need not

insufficiency of or ineffective as- evidence

sistance of counsel.

DECISION denied a fair trial highly prejudicial

erroneous admission re-

videotape. His convictions must

versed.

Reversed trial. and remanded new III, Gen., H. Humphrey, Atty.

Hubert St. Paul, Morris, R. Kathleen Atty., Co. Scott Yunker, Mary Atty., Asst. Shakopee, Co. for respondent. Gainsley,

Phillip Minneapolis, appel- lant.

Heard, considered, and decided HUS- P.J., ‍​​​​‌​‌‌​​​‌‌​‌‌‌​‌​‌​‌​‌​​‌​‌​​‌​​​​​‌​‌‌‌​‌‌‌​‍PENI, CRIPPEN, and RANDALL and JJ.

OPINION RANDALL, Judge. Ford,

Appellant, appeals James A. from denying an order his motion dismiss the charges, judgment from a of conviction en- April tered from on an order denying his motion guilty to withdraw his plea charged to two twelve counts. Appellant makes two claims. first claims the acts in the complaint scope do not come within 609.43(2) (1984). Appellant Minn.Stat. § further if acts do come claims 609.43(2), he should be allowed to plea his guilty withdraw and stand trial on reneged because agreement. denying appel- court

The trial erred reverse. lant’s motion dismiss. We guilty ed to counts two six of FACTS complaint alleging misconduct of a principal vice Appellant, assistant (Minn.Stat. 609.43(2)); employee he also Shakopee speech at history and teacher of agreed cooperate presen- to fully with the chargеd School, with ten counts High (P.S.I.), investigation comply tence to with public employee under of a of misconduct recommendations, therapy from to refrain 609.43(2) 609.43(3), and one Minn.Stat. §§ making derogatory statements about one of fornica- sodomy, of and count count against him, the witnesses and to admit a alleged on All were based tion. counts supporting plea. factual basis the Shakopee High four contact with sexual and former students: students female return, prosecutor agreed drop the to 16), (age 17), 17), (age D.B. (age K.S. J.A.S. counts, remaining the ten recommend a 19). be- The acts occurred (age and J.M. pre-sentence investigation psychologi- and 1984. tween and examination, cal and recommend no further appellant appellant that did such if alleges cooperated fully The incаrceration State young women to violate the The things agreement as allow the with P.S.I. smoking by on the school as to would school rules silent who determine whether require- physical appellant fully “cooperated” education not with grounds, avoid or ments, personal business the P.S.I. use his office hours, the school and leave after school accepting appellant’s guilty plea Prior tо unautho- grounds during school hours for attorneys court to both that the stated it purposes.

rized by not the would be bound State’s sentenc- alleged various acts The twelve counts ing recommendation. appellant hugged, including that claims repeated The court that it not be would kissed, these students and en- and fondled sentencing bound the State’s recommen- vaginal gaged in oral and sex consensual hearing prior in an in-chambers held dation them,

with two of D.B. and J.A.S. sentencing. At this in-chambers hear- to alleges appellant cul counsel, that ing, in the presence defense the personal relationships with the stu tivated attempted to his prosecutor withdraw rec- age they dents while were under appellant that not be incar- ommendation sixteen, making from sexual prosecutor’s but refrained on the belief cerated based sixteen, age they turned advances until appellant cooperated that had not with the disputed not that all of consent.1 It is P.S.I. consensu complained acts were The court refused to allow the State to al. plea agreement from the and withdraw claiming to dismiss that moved appellant cooperat- finding made a that had not charged did come within the advised the ed with the P.S.I. court 609.43(2) and 609.- scope of Minn.Stat. §§ prosecutor: 43(3). The denied his motion but court you say how have to you Now word what preserve claim appellant to allowed you anything I if have further when ask appellant negotiated a while the and beyond you said at the time the what

plea agreement. bargain up you into but entered is saying ‍​​​​‌​‌‌​​​‌‌​‌‌‌​‌​‌​‌​‌​​‌​‌​​‌​​​​​‌​‌‌‌​‌‌‌​‍show I am appellant negotiated the the recоrd will that

The State and tell plead- you’re going to be allowed to me following plea agreement: appellant not complainant, prosecute is in a Respondent months older than the State had to claims 609.43, authority authority, position subds. 2 and 3 because under and uses that no other makes sexual relations complainant criminal statute 609.- to submit. Under cause 344(e), consenting person, legаlly age, a with a crime. nor as to com- neither consent mistake 609.344(e) age We note the of Minn.Stat. the State plainant’s existence are a defense. Because (1984) penalties provides for pursue charge which criminal 609.- not such did 344(e), complainant at but when least sixteen less it we do not address here. eighteen than than the actor is more of further incar- your position any on recommendations changing you’re ceration, they just living my so were recommendation. Ap- on that. Whether or not the Order judge sentencing, when Prior that, despite my pellate Court will feel anything if he had prosecutor asked there, ruling gotten he should have back prosecutor responded say, further said, up and “We will our rec- stand asked the same the court “no.” When ommendations,” up I don’t know. That’s attorney, the dе- of the defense question to them. reference to the attorney made no fense bargained failure to make prosecutor’s stayed execution of the The trial court De- jail of no time. for recommendation file jail sentence to allow time to his contention that counsel reiterated fense right appeal preserved appellant’s 609.43(3) were Minn.Stat. §§ that the facts in the сom- to claim to statutes under which inappropriate plaint not constitute a crime under did charge appellant. 609.43(2) and §§ to court sentenced The trial judgment From the of conviction and de- years probation consecutive terms of two appellant’s motion to withdraw his nial of a condition the counts. As on each of two appellant appeals. guilty plea, to serve twо probation, appellant was in the six-month sentences consecutive ISSUES Jail, County for each count. one Scott denying the court err in 1. Did trial prosecutor inadvertently failed The ruling dismiss and in appellant’s motion to remaining drop the ten make a motion to complaint alleged proba- sufficient that the appellant’s guilty exchange for counts charge appellant under Minn. cause to ble counts, never did two and the court plea to 609.43(2) (3)? Stat. § ar- formally those counts. At oral dismiss refusing 2. Did the trial court err attorney as- appeal, county gument on the guilty plea appellant to withdraw his allow drop court that failure sured this appellant’s on claim based oversight and that charges was bargain violated? had been charges dropped at the close would be proseсutor vowed to proceeding. had no intent to the court that the State ANALYSIS charges further. pursue I. 16, 1985, denied April the trial court On post-sentencing motion to with- appellant’s Probable Cause hearing the guilty plea. At the draw his court’s challenges the trial Appellant position: its court stated cause under Minn.Stat. finding probable show that I still take The record should 609.43(3)(1984). 609.43(2) Because §§ upis to the position that the sentence guilty only to counts pleaded plea bargain. I Judge, regardless of the 609.43(2), nei- we reach charged under § is, “Hey, (prosecu- he your position know probable cause under issues of ther the tor) gotten up and mouthed should have counts 609.43(3) propriety of the nor the § words, T recommend no further say, sodomy and fornication. ” incarceration.’ 609.43(2) was argues that § have the entire Appellatе Court will conduct, private prohibit not intended par- on in this background of what went sexual in consensual participation as such position that ticular case and the age of persons of the relationships with that, “Hey, that took to the effect consent. point bargain on that was a conditional 609.43(2)states: Minn.Stat. § up to the don’t think he lived and we does employee who or did, A officer condition,” so I I I think he and said no other following, which any of the attempt to make not to directed specifically provided law, sentence is scarcity There is a of case interpret law may imprisonment be sentenced to ing 609.43. exception, With one the statute year payment not more than one or to litigated has not been appellate at the level $3,000, a fine of not more than or bоth: in Minnesota since 1949. That case is

(2) capacity Anderson, In his as such (Minn. officer or State v. 370 N.W.2d 653 employee, does an act which Ct.App.1985). Anderson, he knows mayor of Jor dan, is in excess of his authority Minnesota, lawful or was convicted under Minn. which he knows he is forbidden 609.43(2) law Stat. of official misconduct for capacity. to do in his official verbally harassing family. a Jordan The construction of a statute is a rejected This court argu- Anderson’s question Schwarze, of law. See State v. speech ments that her protected by 120 Wis.2d 355 N.W.2d first amendment and that (1984). questions Our review of of law is unconstitutionally vague and overbroad. independent and need not we defer to the The court found ,done Anderson’s acts were interpretation trial court’s of a statute. capacity her official mayor. as Inc., Imports, v. Rod Baxter Durfеe dispute Anderson did not that her acts (Minn.1977). N.W.2d were done in capacity. her official She high principal A school vice argued position that her mayor of Jor- teacher, employee public as an of the state dan, as protection well as the of the First system supported by funds, school state is Amendment, gave her authority to do cer- public employee a purposes of 609.- § tain acts. 43(2). Here makes a different claim. advisory The committee comment to He does not claim capaci- that in his official (West 1964) Minn.Stat.Ann. 609.43 dis- § ty vice-principal right as a he had the to cusses the kinds of misconduct intended to students, make sexual contact with but in- be reached the statute: stead claims that the sexual contacts he * * Among specific acts dealt with made, any, if purely private were done in a bribery, permitting are escape prison- capacity legal and were because done with ers, accepting fees, unauthorized etc. persons age of the of consent. * * * general attempt In no has been though We note that even upheld we bring very many special provi- made to 609.43(2) against Anderson’s attack of § compass sions general within of the vagueness, uncоnstitutional the statute is expand special or to the number of situa- clarity. 609.43(2) not a model of Section separately. tions dealt with nowhere defines “acts done in excess of subjects public Section 609.43 employees authority,” lawful nor it does define what and officials to criminal sanctions for acts act, e.g. civil, “law” must forbid the crimi- capacity. done in an official nal, administrative, regula- school internal construing

No Minnesota cases sexual tions, etc. 609.43(2) conduct Minn.Stat. interpreting Case law in- application its to sexual misconduct could prosecution cludes the of officeholders and be found. ‍​​​​‌​‌‌​​​‌‌​‌‌‌​‌​‌​‌​‌​​‌​‌​​‌​​​​​‌​‌‌‌​‌‌‌​‍political appointees neglect for willful Palmersten, Criminal statutes are to strictly duty. be See State v. 210 Minn. 476, (1941). construed in favor of precedent defendants. State v. 299 N.W. 669 Little Haas, 197, 118, 280 Minn. 159 guide intеrpretation N.W.2d exists to of its lan- (1968), Bramblett, 503, guage U.S. v. 348 applies public employees U.S. as it 509, (1955). 75 charged S.Ct. 99 L.Ed. 594 with official misconduct who ar- does, All concerning legislative gue, reasonable doubt complained that the intent should in private, express be resolved favor of the of conduct not in vio- Minn, Haas, 200, law, defendant. any 280 at 159 lation of known and not within N.W.2d at 121. legislative intent of § case, ployee, A v. and either must recent Wisconsin State be forbidden 657, Schmit, Wis.2d 340 N.W.2d 752 law or be in excess authority. of his lawful (1983), factually similar this case Here, although appellant is a interpreting identically worded Wiscon- employee, the mere fact that he was on statute,2 persuasive. sin is duty at the time of some of the Schmit, prison guard Dodge at a Correc- does not alone questioned transform the Institution, charged tional with mis- act into “in capacity.” acts done his official 946.43(2) (1984) conduct under Wis.Stat. § engaging in consensual intercourse adopt purely We the distinction between prisoner. affirming a the dismissal with private acts and acts done in an official charges, Supreme Court the Wisconsin Heliczer, capacity United v. States distinguished public employee’s between a 241, (2d Cir.), F.2d cert. den. 388 U.S. purely pri- in a official acts and acts dоne (1967): 87 S.Ct. 18 L.Ed.2d 1359 * * * capacity: vate “Engaged performance of offi- Although meaning of the statute is simply acting cial duties” is within the clear, requires on its face far from it scope agent employed what the is more than a mere violation of the crimi- agent do. The test is whether the by public requires a official. It nal code acting compass engag- within that or is both that the officer commit the act ing personal in a frolic of his own. capacity, an official and that the act be Although allegations against ap he is law to do one which forbidden pellant may morally reprehensible, capacity. in an think this official We offensive, pointed any has not requirement dual of the statute evinces specifically forbidding criminal law school appli- legislative intention to confine the sexual teachers to have contact with stu cation of the statute to acts committed age of dents of the consent.3 scope public employment. within necessary allega failed to make the has purpose appears of the law to be the charge appellant violating tions to with prevention power of the misuse of en- 609.43(2). nothing We have found in officers, § than the public trusted to rather indicating or case a Minnesota statutes law imposition penalty of an additional legislative intent to criminalize consensual persons all

conduct which is forbidden to persons sexual relations between of generally when that conduct is commit- merely of the ‍​​​​‌​‌‌​​​‌‌​‌‌‌​‌​‌​‌​‌​​‌​‌​​‌​​​​​‌​‌‌‌​‌‌‌​‍age of consent because one by public employee. ted a officer or happens public employ a participants Schmit, at 340 N.W.2d at 115 Wis.2d ee. (emphasis original). in 754 failing allege In acts for- addition to agree that for an act to come We law, the State has failed to by bidden a of Minnesota’s within the narrow confines complaint vio- allege in the statute, three tests must be rule, any civil or administrative lated law public a met. The act must be done by law” includes assuming that “forbidden employee, officer or the act must be com (and that by administrative rule acting is in his forbidden mitted while the defendant distinction, noted, previously is not clear capacity official as a officer or em- 2. The material felony: does ploye, ity- is forbidden (West 1982) provides: Any public (2) his lawful any In his does an act which he knows is in ^[******] of the capacity portion authority officer or following law to do in his official as such officer or еm- or which he knows he Wis.Stat.Ann. public employe is guilty of a Class E capac- excess 946.- who 3. We secondary the Minnesota State appellant’s appellant’s licenses to act as a full-time ing In revoked do not address August school actions appellant’s speech part-time. Minnesota State Board of Teach- or nor his fitness to teach. Board of any superintendent licenses to teach civil ramifications of Teaching principal of a September, of schools. revoked history Thus, statute). complaint is DECISION from facially defective. in finding The trial court erred the State properly alleged activity criminal under allege the State did not hold that We Minn.Stat. § charge appellant with sufficient conduct Reversed. 609.43(2). There- violating Minn.Stat. § fore, granting erred in not trial court CRIPPEN, J., speсially concurs. to dismiss. motion appellant’s CRIPPEN, (concurring specially). Judge similar to Schmit:

Our rationale panel correctly analyzed I believe the has suggestion in the record is no There section scope of Minnesota Statutes power utilized the that the defendant 609.43, therefore concur subdivision she had any manner when her office opinion. stage At this majority she prisoner, or that intercoursе with however, proceedings, I decide would any than a other committed those denying erred in the trial court capacity.” There is no “purely private to withdraw his defendant’s motion instance, threat- that she suggestion, guilty. benefits within or offered ened sanctions prosecutor The defendant and the public officer to bestow power her as a apparent plea agreement. reaсhed a It is prison- to obtain the in order or withhold expected agree- that defendant to the acts. er’s consent prosecu- ment a recommendation from the Schmit, at 340 N.W.2d at Wis.2d against tor further incarceration. prosecutor’s plea agreement did not appellant turned his allegations that the statement hypocrisy, call for a formal to smoke on the students head and allowed of a recommendation and the informal re- leave the school property and school vealing opinion. Once the of a different hours are not suffi- grounds during school prosecutor judge trial an offi- stated to the Students do not cient to show coercion. plea agreement, the cial disavowal of the of school officials to acquiesence need the irrevocably аgreement was withdrawn breaking regulations like get away with wholly void. agreed to or threat- Had those. attempted to attribute The trial court grades a student’s or write change ened to significance original plea some colleges that would result in a letters to agreement after it was voided the decla- being deprived of admission or student’s prosecutor. This was an rations of the sex, exchangе for the result scholarship The trial court’s statements about error. acts may different as these have been nothing agreement could do but mis- performed interpreted could defendant, him suggesting to lead the capacity. an official to recom- prosecutor’s commitment of some against mend incarceration was statutory a matter of We hold that as agreement significance. Thе continued trial court did not have interpretation, the significance, and the trial had no continued it sufficient for the crim- presented facts the defendant court should have said to Minn.Stat. activity inal this the case. agreement is set aside plea When a II. court, parties advise the “it shall so upon call the defend- open court and then agreement Plea plea.” his ant to either affirm or withdraw 15.04, 3(1). disposition of the statu- Because of our subd. Here Minn.R.Crim.P. issue, prosecutor, tory interpretation agreement we do not address was set aside used the should have plea bargain violat- the trial court the claim that the rule, not approach called same ed. mislead the defend- approach that could ant. circumstances, the convic- these

Under manifestly unjust. The defendant

tion was enjoy his and to

is entitled to withdraw against him. any accusations

a trial on 15.05, subd. 1.

Minn.R.Crim.P.

In the Matter of the WELFARE J.A.,

OF a minor.

No. C1-85-592. Appeals

Court of of Minnesota.

Nov.

Review 23, 1986. Denied Jan. Park, appel- Berg, L. St. Louis

James lant. Rowland, County Atty.,

Marcia Carver Palmer, Atty., County Asst. Chas- Virginia ‍​​​​‌​‌‌​​​‌‌​‌‌‌​‌​‌​‌​‌​​‌​‌​​‌​​​​​‌​‌‌‌​‌‌‌​‍ka, respondent. Platto, Chaska, Ad Li- Guardian

Nancy tem.

Heard, by LANS- and decided considered CRIPPEN, ING, P.J., RANDALL and JJ.

Case Details

Case Name: State v. Ford

Court Name: Court of Appeals of Minnesota

Date Published: Jan 31, 1986

Citation: 377 N.W.2d 62

Docket Number: CX-85-719

Court Abbreviation: Minn. Ct. App.