author: WILLIS, Judge.

text:
    David Charles FOSS, as parent and natural guardian of David Gerald Warren Foss, minor child, and David Charles Foss, individually, Appellant, v. Jeremy KINCADE, et al., defendants and third party plaintiffs, Respondents, v. Peggy Foss, third party defendant, Respondent.
    No. A07-313.
    Court of Appeals of Minnesota.
    April 8, 2008.

      Thomas G. Johnson, Todd M. Kleinhuizen, Johnson, Moody, Schmidt & Kleinhuizen, P.A., Willmar, MN, for appellant.
    Louise Dovre Bjorkman, John M. Bjork-man, Mark A. Solheim, Larson King, LLP, St. Paul, MN, for respondents Jeremy Kincade, et al.
    Peggy Foss, Lonsdale, MN, pro se, respondent.
    Considered and decided by WILLIS, Presiding Judge; WRIGHT, Judge; and PORITSKY, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

WILLIS, Judge.

This appeal arises from a negligence action brought by appellant, whose child was injured when an empty bookcase fell onto him during a visit with his mother to respondents’ home. The district court granted summary judgment dismissing appellant’s complaint, concluding as a matter of law that respondents did not have a duty to protect appellant’s child from the danger posed by the bookcase. We affirm.

FACTS

David Gerald Warren Foss was injured during a visit with his mother, Peggy Foss, to the home of family friends, respondents Jeremy and Stephanie Kincade. David, then three years old, was playing on the main floor of the Kincades’ home while Peggy Foss and Stephanie Kincade talked in the kitchen. The two women heard a crash coming from a first-floor bedroom and discovered David under a fallen bookcase. The parties believe that David was climbing on the bookcase when it fell onto him.

David Charles Foss (Foss) asserted a negligence claim against the Kincades on behalf of himself and his son David. Foss alleged that the Kincades were negligent both in failing to secure the bookcase and in failing to warn David of the danger posed by the bookcase. The Kincades moved for summary judgment, arguing that they owed no duty to protect David, who was under the supervision of his mother at the time. The district court granted the motion, and this appeal follows.

ISSUE

Did the district court err by concluding that the homeowners owed no duty as a matter of law to protect a three-year-old child visitor under his mother’s supervision?

ANALYSIS

I.

This court reviews de novo a district court’s decision on a motion for summary judgment. See Gagliardi v. Ortho-Midwest, Inc., 733 N.W.2d 171, 175 (Minn.App.2007). Summary judgment is appropriately granted when there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; see also Louis v. Louis, 636 N.W.2d 314, 318 (Minn.2001). In a negligence case, the defendant is entitled to summary judgment when there is a complete lack of proof on any of the four elements necessary for recovery, including, as relevant to this case, the existence of a duty. See Louis, 636 N.W.2d at 318.

“Any legal analysis of an action brought against a landowner alleging negligence must begin with an inquiry into whether the landowner owed the entrant a duty.” Id. (citing Baber v. Dill, 531 N.W.2d 493, 495 (Minn.1995)). Generally, the existence of a duty is an issue of law for the court to determine. Id. Foss does not assert that the Kincades owed a duty to protect or warn David’s mother. Indeed, the parties agree that the risk of a bookcase tipping over is obvious to an adult. See Munoz v. Applebaum’s Food Market, Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972) (concluding that landowners owe no duty with respect to obvious dangers). The issue before us, then, is whether the Kincades owed a duty directly to David, who, because of his young age, was unable to appreciate the danger posed by climbing on the bookcase.

Because David is a child, Foss asserts that the determination of duty in this case should be governed by the standard applied to child trespassers under Restatement (Second) of Torts § 339 (1965), which requires landowners to anticipate and protect against dangers that, although obvious to adults, may not be recognized and heeded by children. Our supreme court has applied the Restatement standard to all child entrants, regardless of their status as trespassers, licenses, or invitees. See Meagher v. Hirt, 232 Minn. 336, 339-40, 45 N.W.2d 563, 565 (1951). But the supreme court has also held that the Restatement standard does not apply to children injured while in the company of their parents in areas where one would not expect to find unaccompanied children. See Sirek v. State, Dep’t of Natural Res., 496 N.W.2d 807, 811 (Minn.1993) (holding that child-trespasser standard did not apply to child injured while visiting state trails with her parents because unaccompanied children did not frequent isolated state trail). The supreme court has further recognized that the Restatement standard does not apply to dangers that “may reasonably be expected to be understood and appreciated by any child of an age to be allowed at large.” Id. (citing Restatement (Second) of Torts § 339 cmt. j).

Here, David visited the Kineades’ home in the company of and under the supervision of his mother, who concedes that a three-year-old child must be watched constantly. At three years of age, David could not be expected to enter the Kin-cades’ home on his own, nor was he of an age “to be allowed at large.” See id. Under these circumstances, we conclude that the Restatement standard for the duty owed to child trespassers does not apply.

In 1972, the Minnesota Supreme Court eliminated the categorical distinctions between duties owed to invitees and licensees, and held that landowners’ liability to persons injured on their premises should be determined under “ordinary standards of negligence.” See Peterson v. Balach, 294 Minn. 161, 173, 199 N.W.2d 639, 647 (1972). Following Balaeh, the duty of a property owner to “inspect, repair, or warn those who come upon the land” is decided under “the test of reasonable care.” Id.

In determining whether the Kineades owed a duty to David in this case, we begin with several basic negligence principles. First, a negligence claim may be premised on either a person’s acts or failure to act. See Restatement (Second) Torts § 284. But negligence arises from a person’s failure to act only when that person owes a duty to the injured party. Id. There is generally no duty to act for the protection of others. Id. § 314. Such a duty may be found to exist, however, based on the relationship between the parties and the foreseeability of harm. See Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn.1989).

The relationship between the parties here — landowner and social guest — is not disputed, but the parties do dispute the foreseeability of the incident that caused David’s injuries. Foss argues that it was entirely foreseeable that a three-year-old boy, curious by nature, would attempt to climb on an empty bookcase. The Kin-cades reply that, while it may have been conceivable that a child would climb the bookcase, it was not foreseeable in the legal sense of that word.

The concept of foreseeability has been a challenging one for both courts and litigants. See W. Jonathan Cardi, Purging Foreseeability, The New Vision of Judicial Power in the Proposed Restatement (Third) of Torts, 58 Vand. L.Rev. 739, 744 (2005) (characterizing the concept as “among the most confounding in the common law”). Literally construed, to foresee is to know beforehand. See The American Heritage Dictionary 689 (4th ed.2000). But in jurisprudence, the concept of foreseeability is not strictly literal, but rather encompasses policy considerations as well. See Black’s Law Dictionary 676 (8th ed.1999) (defining foreseeability as “the quality of being reasonably anticipatable” (emphasis added)). Thus, our supreme court has held that a duty will not lie when the connection between the damage-causing event and the alleged negligent act is “too remote to impose liability as a matter of public policy.” Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn.1986) (stating that improper use of a product “need not be anticipated by the manufacturer” (emphasis added)); see also Whiteford v. Yamaha Motor Corp., U.S.A., 582 N.W.2d 916, 919 (Minn.1998) (holding that risk of collision between toboggan and parked snowmobile “was not one which Yamaha was required to anticipate or protect against” (emphasis added)); cf. Peterson v. Richfield Plaza, Inc., 252 Minn. 215, 222, 89 N.W.2d 712, 718 (1958) (finding foreseeability but acknowledging that cases could be found expressing a contrary view on the foreseeability of the particular harm, and declining to follow those cases).

“When the issue of foreseeability is clear, the courts, as a matter of law, should decide it.” Whiteford, 582 N.W.2d at 918. In closer cases, the issue should be sent to the jury. Id. In this case, in consideration of all of the circumstances, we agree with the district court that David’s injury was not foreseeable and thus that the Kincades did not owe a duty to him as a matter of law.

The presence of David’s mother is central to our determination. Minnesota caselaw recognizes that the primary responsibility for the protection of a child rests with the child’s parents. For instance, in Sirek, the Minnesota Supreme Court explained that “[w]hen small children are being watched by their parents, or entrusted persons in supervision, landowners may be relieved of a duty to warn them of or remove dangerous instrumentality[sic][,] the danger from which is apparent.” 496 N.W.2d at 811 (quotation omitted); see also id. (“[I]f a child is too young chronologically or mentally to be ‘at large,’ the duty to supervise that child as to obvious risks lies primarily with the accompanying parent.” (quotation omitted)).

This court’s decisions likewise have recognized the paramount duty of parents to protect their children. In holding that a child’s uncle did not have a duty to protect her from abuse by her father, we explained that “[t]he responsibility for supervision of [a] child may be relinquished or obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming the responsibility.” See Sunnarborg v. Howard, 581 N.W.2d 397, 399 (Minn.App.1998) (quoting Laser v. Wilson, 58 Md.App. 434, 473 A.2d 523, 528-29 (1984)) (quotation marks omitted), review denied (Minn. Sept. 22, 1998). Although the Sunnarborg decision turned on whether a special relationship existed, an issue not presented here, the Maryland case from which it quotes is a premises-liability case. The Maryland court continued:

A host or hostess can not be required to follow from room to room an active two year old — brought by his parents — protecting him from his indiscretions and the innumerable obvious though dangerous conditions that exist in every home.

Laser, 473 A.2d at 529. We agree with this reasoning. It would be contrary to our societal norms to expect a homeowner to take charge of another’s child, particularly in the presence of the child’s parent. Thus, consistent with the foregoing cases, we conclude that the paramount duty to provide for a child’s safety rests with that child’s parents and cannot be delegated merely by entering the home of another.

Our determination here also takes into account the fact that David was injured while visiting a private residence. The incident at issue took place in the Kin-cades’ home, which a child could not reasonably be expected to enter on his own. This is not a case involving “child invitees or licensees who wandered away from their parents in business places where their unsupervised presence could reasonably be anticipated.” Sirek, 496 N.W.2d at 811. Thus, cases involving injury to children visiting retail establishments do not control our decision here. See Szyplinski v. Midwest Mobile Home Supply Co., 308 Minn. 152, 156, 241 N.W.2d 306, 309 (1976) (affirming verdict based on duty owed by storeowner to protect child from machinery that storeowner knew or should have known could fall over on child visitors); Peterson, 252 Minn. at 222, 89 N.W.2d at 718 (affirming verdict based on duty owed by storeowner to protect child from insufficiently guarded balcony on which store-owner had seen children playing).

Finally, we note that the object causing injury in this case was a common household object — something that one might expect to find in any home. Foss argues that the bookcase posed a particular hazard because it was empty and not secured to the wall. Little imagination is required, however, to construct a list of many other potentially hazardous items present in most, if not all, homes. Imposing duties on homeowners to protect child visitors of all ages and personalities from these hazards would be tantamount to mandating childproofing requirements for private residences. Cf. Sirek, 496 N.W.2d at 811 (explaining that imposing liability for injuries suffered by children accompanied by their parents in state parks “would require the ‘childproofing’ of vast areas of state parks”). Such a standard would not only be overreaching but also fraught with uncertainty. Even knowing the ages of potential child visitors would not apprise homeowners of the level of childproofing necessary to discharge their duty. Indeed, the Kincades believed that their home was safe for their own children, including their own three-year-old son.

Considering the circumstances as a whole, we conclude that the risk of harm to David was “too remote to impose liability as a matter of public policy.” Germann, 395 N.W.2d at 924. Our conclusion that no duty existed in this case is based on the totality of these circumstances before us. We do not hold that landowners can never have a duty to protect children on their premises. For example, the duty of reasonable care owed to all entrants may require homeowners to warn or protect both parent and child visitors from latent dangers in their homes. See Olmanson v. Lesueur County, 693 N.W.2d 876, 880-81 (Minn.2005) (describing duty of reasonable care to all entrants). And of course, when a parent entrusts a child’s care to another person who accepts that undertaking, that person owes a duty to keep the child safe. See Bjerke v. Johnson, 727 N.W.2d 183, 190 (Minn.App.2007), aff'd, 742 N.W.2d 660 (Minn.2007).

II.

Foss asserts that summary judgment should have been denied because of the Kincades’ spoliation of evidence. More than a year before this litigation was initiated, the Kincades disposed of the bookcase that fell on David. Foss asserts that he was prejudiced by not being able to examine the bookcase; that he is entitled to an inference that the bookcase had hardware affixed to it for wall mounting; and that such an inference would preclude the entry of summary judgment. We disagree.

Initially, we note that, although it was briefed and argued below, the spoliation issue was not resolved by the district court. When a spoliation issue is raised, “the trial court is not only empowered, but is obligated to determine the consequences of the evidentiary loss.” Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn.1995). And we generally decline to resolve issues not addressed below. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (limiting issues on appeal to those raised and addressed below). Nevertheless, in the interest of judicial economy, we address Foss’s spoliation argument here. See Minn. R. Civ.App. P. 103.04.

We discern no prejudice that would justify the sanction that Foss seeks here. See Wajda v. Kingsbury, 652 N.W.2d 856, 860 (Minn.App.2002) (explaining that the appropriateness of a sanction for spoliation of evidence is determined by the prejudice to the opposing party). Foss was able to present evidence of the bookcase through a photograph of it and through testimony regarding its characteristics. And Foss’s expert had no trouble rendering opinions based on a photograph of the bookcase, including the opinion that the accident could have been prevented with the use of wall brackets. There was no dispute that the Kincades could have attached the bookcase to the wall. The precise characteristics of the bookcase simply are not relevant to the determination of the issues in this case. Accordingly, spoliation sanctions are not appropriate.

DECISION

Under the reasonable-care standard, the duty owed by a landowner must be determined based on the particular circumstances of each case. Balach, 294 Minn. at 174, 199 N.W.2d at 648. After considering the totality of the circumstances here, we conclude that the Kincades did not owe a duty to protect David from the danger posed by the empty bookcase. And we conclude that sanctions for spoliation of evidence are not appropriate. Accordingly, we affirm the district court’s grant of summary judgment to the Kincades.

Affirmed.

      . We are aware that the supreme court's holding in Sirek was also influenced by the limited statutory immunity afforded to state agencies for injuries sustained in state parks under Minn.Stat. § 3.736, subd. 3(h) (1992). See Sirek, 496 N.W.2d at 811. But we read the Sirek holding to rely principally on the fact that the child was accompanied by her parents in an area where children were unlikely to be present without parental supervision. See id.

      . Minnesota courts have most frequently addressed the existence of a duty to protect in the context of so-called "special relationships,” which arise when a person “accepts responsibility to protect another, although there was no initial duty.” Lundman v. McKown, 530 N.W.2d 807, 820 (Minn.App.1995), review denied (Minn. May 31, 1995). Foss does not assert that the Kineades owed a duty to protect David because of a special relationship.

      .The proposed Restatement (Third) of Torts takes the position that foreseeability should not play a role in duty determinations, arguing that the reasons for a no-duty determination should be "articulated directly without obscuring references to foreseeability.” Restatement (Third) of Torts § 7 cmt. j (Proposed Final Draft No. 1). This portion of the Third Restatement has neither been published by the American Law Institute nor adopted by our supreme court, and, thus, we do not apply it here.


source: Caselaw Access Project

author: ROSS, Judge.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. David SOUKUP, Respondent.
    No. A07-1783.
    Court of Appeals of Minnesota.
    April 8, 2008.

      Lori Swanson, Attorney General, St. Paul, MN; and Michael O. Freeman, Hen-nepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, MN, for appellant.
    Carol Grant, Kurzman Grant Law Office, Minneapolis, MN, for respondent.

      Considered and decided by LANSING, Presiding Judge; ROSS, Judge; and JOHNSON, Judge.
   OPINION

ROSS, Judge.

This appeal requires us to decide whether the statute of limitations prevents the state from prosecuting David Soukup for sexually abusing his now-adult step-daughter when she was nine years old. The district court dismissed the criminal complaint based on its interpretation of the statute of limitations and also because it determined that the Ex Post Facto Clause of the federal Constitution prohibits the state from prosecuting Soukup. Because the district court erroneously interpreted the statute of limitations and misapplied the Ex Post Facto Clause, we reverse the district court’s order dismissing the criminal complaint.

FACTS

On November 1, 2006, C.K. contacted the Minneapolis Police Department and reported that her adoptive father, David Michael Soukup, had sexually abused her between 1984 and 1987 when she was nine to twelve years old. She alleged that Soukup performed oral sex on her and required her to perform oral sex on him. C.K. had previously told her cousin about the abuse in July 1996, when C.K. was 21.

The police interviewed Soukup in January 2007, and Soukup admitted the allegations of abuse. He confessed to requiring C.K. to perform oral sex, and although he denied remembering her age when the abuse occurred, he acknowledged that it happened when she was in elementary school. The state charged Soukup with one count of first-degree criminal sexual conduct in violation of Minnesota Statutes section 609.342, subdivisions 1(a) and (2) (1984).

Soukup soon moved the district court for dismissal, arguing that the statute of limitations barred prosecution for the 20-year-old conduct. The applicable statute of limitations has a nine-year offense-to-prosecution period with an exception for cases in which the victim has waited a longer period to report the abuse. It provides as follows:

Indictments or complaints for [first-degree criminal sexual conduct] if the victim was under the age of 18 years at the time the offense was committed, shall be found or made and filed in the proper court within nine years after the commission of the offense or, if the victim failed to report the offense within this limitation period, within three years after the offense was reported to law enforcement authorities.

Minn.Stat. § 628.26(c) (Supp.1995). This case hinges on what this statute means by the phrase “report the offense.”

The district court granted Soukup’s motion to dismiss based on its application of the various versions of the statute as amended over time since the abuse occurred. The district court first determined that the versions of section 628.26 as amended in 1989, 1991, and 1994 applied, holding that the 1994 version required C.K. to report the abuse before August 1, 1994. Because C.K. did not report the abuse until twelve years later, the district court ruled that the statute of limitations prevented prosecution and dismissed the criminal complaint with prejudice.

The state moved the district court to reconsider, arguing that the court misunderstood the statute and that the statute-of-limitations period had not expired because the state brought charges against Soukup well within three years after C.K. first reported the abuse to law enforcement authorities in 2006. The district court agreed that the 1995 version of section 628.26 applies, but it nevertheless denied the state’s motion to reconsider. It applied the proper version of the statute but continued to hold that it precluded Soukup’s prosecution based on the district court’s broad interpretation of the term, “report.” The court also concluded that Minnesota Statutes section 609.342, the provision criminalizing sex with minors, is a constitutionally defective ex post facto law as applied to Soukup, and it dismissed the complaint on that alternative ground. The state appeals the dismissal.

ANALYSIS

The state challenges the pretrial order dismissing the criminal complaint. To prevail on appeal of a pretrial order, the state must clearly and unequivocally show that the order is clearly erroneous and will critically impact the state’s ability to prosecute the case. State v. McLeod, 705 N.W.2d 776, 784 (Minn.2005). Critical impact is a threshold issue. Id. Dismissal of the complaint constitutes a critical impact on the prosecutor’s case. See State v. Richmond, 730 N.W.2d 62, 66 (Minn.App.2007) (noting that where an order dismisses a state’s case, the critical impact prong is met if defendant does not challenge critical impact); see also State v. Meyer, 646 N.W.2d 900, 902 (Minn.App.2002). Here, dismissal order from which the state appeals passes the threshold. The remaining and central issue is whether the district court clearly erred when it dismissed the complaint. We hold that it did.

The district court dismissed the complaint because it concluded that the statutory limitations period had expired. When the offense is a continuing one, the statute of limitations begins to run when the offense ends. State v. Danielski, 348 N.W.2d 352, 355-57 (Minn.App.1984), review denied (Minn. July 26, 1984). The complaint here alleged that Soukup committed multiple acts of sexual abuse against C.K. between 1984 and 1987. See id. (treating multiple sexual acts over a period of time as a continuing offense under section 609.342). For the purpose of applying the statute of limitations, 1987 is the year of the offense.

Despite the early confusion in the district court, the parties now agree with the district court’s final assessment that the 1995 amendment to the statute applies here. The statute as amended expressly requires complaints of the offense charged against Soukup to be filed either within nine years after the offense “or, if the victim failed to report the offense within this limitation period, within three years after the offense was reported to law enforcement authorities.” MinmStat. § 628.26(c) (1995). The district court held, and Soukup argues on appeal, that because C.K revealed to her cousin in 1996 that Soukup had sexually abused her, the case does not fall within the non-report exception in the statute of limitations. Specifically, the district court decided that by disclosing the abuse to her cousin, C.K. “reported” the 1987 offense in 1996, barring any prosecution based on C.K’s later “report” to law enforcement in 2006. The appeal depends on how we define “report”; we must decide whether “reporting” includes informing a relative.

We conclude that the 1995 amendment extended the limitations period for the prosecution of Soukup’s acts against C.K. to three years after she reported the offense to police in November 2006. This conclusion follows from a straightforward reading of the statute. This court reviews statutory construction de novo. State v. Koenig, 666 N.W.2d 366, 372 (Minn.2003). The object of statutory interpretation is to give effect to the legislature’s intent. Minn.Stat. § 645.16 (2006). A statute’s words and phrases should be read according to their plain and ordinary meaning. Koenig, 666 N.W.2d at 372. “When the words of a law in their application to ah existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16. A statute is ambiguous only when it is subject to more than one plausible interpretation. Harrison ex rel. Harrison v. Harrison, 733 N.W.2d 451, 453 (Minn.2007).

The meaning of “report” as used in the statute is not ambiguous. Although the non-report exception in the statute is not the model of legislative clarity, it lends itself to only one reasonable interpretation. In back-to-back clauses, the single-sentence provision twice uses a variation of the word “report,” and in context, the meaning is self evident: both references regard the same “report.” The second use includes the full description of the “report” as being “to law enforcement authorities.” There is no textual or practical reason to conclude, as Soukup urges, that the first use of “report” means anything other than the second. Based on the context, syntax, and grammar of the statutory language, we hold that a “report” in section 628.26(c) is a report to law enforcement authorities.

Although our holding rests on the plain language of the statute, we add that neither the district court’s order nor Soukup’s argument provides any reasonable basis for a different reading. The practical end of Soukup’s theory is that when a sexually abused child privately reveals the abuse to anyone and by any means, even in an anonymous internet posting, for example, her abuse is forever removed from the statutory exception designed to extend the limitations period for young victims who do not report their abusers promptly. We cannot accept this to be the intended consequence of an exception designed to expand, rather than limit, the statutory period in which the state may charge sex offenders. See Minn.Stat. § 645.17(1) (2006) (“[T]he legislature does not intend a result that is absurd, impossible of execution, or unreasonable.”).

We have explained in a related setting that to “report” means to inform law enforcement authorities. In Danielski, a sex-crimes victim was abused from ages 9 to 16. 348 N.W.2d at 355. This court stated, “Although the victim told her mother, this was insufficient to get official involvement.” Id. And we noted that “[t]he purpose of [section 609.342] — penalizing those who use their authority to sexually abuse young children — would be completely thwarted by permitting defendants to prevent reporting of the act while taking advantage of the statute of limitations.” Id. at 356.

Additionally, we observe that the statutory scheme that mandates reporting of maltreatment “to protect children whose health or welfare may be jeopardized through physical abuse, neglect, or sexual abuse,” defines “report” as “any report received by the local welfare agency, police department, county sheriff, or agency responsible for assessing or investigating maltreatment pursuant to this section,” and instructs those persons who are mandated reporters to make the report to the responsible, official agency. Minn.Stat. § 626.556, subds. 1, 2(h), 3 (2007). Because we conclude that by “reporting” the statute means notifying law enforcement authorities, we hold that the district court erred in its interpretation of the statute and erroneously failed to apply the exception in section 628.26 to this case.

The district court also dismissed the complaint on the alternative basis that charging Soukup with a violation of Minnesota Statutes section 609.342 violates the ex post facto prohibition. The Ex Post Facto Clause of the United States Constitution prohibits a state from passing a law that criminalizes acts that occurred before its enactment and disadvantages the defendant affected by it. Hankerson v. State, 723 N.W.2d 232, 241 (Minn.2006). A law may be deemed to violate the Ex Post Facto Clause if it disadvantages a defendant in any of three ways: (1) by punishing as a crime an act previously committed, which was not a crime at the time; (2) by increasing the burden of punishment for a crime after its commission; or (3) by depriving the defendant of a defense that was available when the crime was committed. Id. This court has held that the retroactive application of the 1989, 1990, and 1991 amendments to section 609.342 does not violate the ex post facto prohibition. State v. Burns, 524 N.W.2d 516, 519-20 (Minn.App.1994), review denied (Minn. Jan. 13,1995).

The district court concluded that section 609.342 is an ex post facto law as applied to Soukup because the penalties for the offense are greater now than when Soukup committed the offense, from 1984 to 1987. But the state charged Soukup with violating the 1984 version of the statute, not a newer version. Soukup points out that although the complaint filed against him expressly identifies the correct, 1984 version of the statute, it does not reflect the correct penalty for the 1984 version of section 609.342 because it references a penalty of “0-30 years,” which is the penalty for violating the newer version. We agree with the state that this drafting error does not create an ex post facto concern. See State v. Billington, 241 Minn. 418, 427, 63 N.W.2d 387, 393 (1954) (“[A] conviction will not be reversed for mere technical errors where it appears that the accused has not been prejudiced through the impairment of substantial rights essential to a fair trial.”). And the state acknowledges that, regardless of the erroneously referenced penalty term, the district court may not impose an excessive sentence by incarcerating Soukup longer than the penalty allowable under the 1984 statute. Prosecuting Soukup under section 609.342 does not invoke the concerns of the Ex Post Facto Clause.

DECISION

The district court erred when it dismissed the complaint on either basis described in its order. Because the district court’s erroneous order had a critical impact on the prosecution, we reverse.

Reversed.


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. Courtney James ALLINDER, Appellant.
    No. A08-0068.
    Court of Appeals of Minnesota.
    April 8, 2008.

      Lori Swanson, Attorney General, St. Paul, MN; and Boyd A. Beccue, Kandiyohi County Attorney, Willmar, MN, for respondent.
    Todd V. Peterson, St. Cloud, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; WILLIS, Judge; and SHUMAKER, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

The notice of appeal indicated that this appeal was filed from a “sentencing order.” Because the statement of the case of appellant Courtney James Allinder revealed that the order stayed adjudication, this court questioned jurisdiction. We conclude that the stay of adjudication is appealable and accept jurisdiction.

FACTS

Allinder was charged with fifth-degree controlled-substance offense, a felony. At the omnibus hearing, he challenged the warrantless search of a container inside his vehicle. After the district court denied Allinder’s motion to suppress, Allinder waived his right to a jury trial and proceeded to a stipulated-facts trial under State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The district court found Al-linder guilty as charged but stayed the adjudication of conviction under Minn.Stat. § 152.18 (2006).

ISSUE

Is a stay of adjudication of conviction in a felony case appealable by the defendant as a matter of right?

ANALYSIS

With certain exceptions not applicable here, a criminal defendant may not appeal until an adverse final judgment has been entered against him. Minn. R.Crim. P. 28.02, subd. 2(2). A judgment is considered final when there is a judgment of conviction and sentence is imposed or the imposition of sentence is stayed. Id, subd. 2(1). This court’s order questioning jurisdiction noted the supreme court’s holding that a stay of adjudication is a pretrial order, not a final judgment that a defendant can appeal as of right. See State v. Verschelde, 595 N.W.2d 192, 196 (Minn.1999); see also State v. Lee, 706 N.W.2d 491, 493-95 (Minn.2005) (reaffirming holding that stays of adjudication are pretrial orders for purposes of appeal).

The supreme court has since clarified its holding in Lee in an unpublished order. State v. Manns, No. A06-478, 2006 WL 3007850 (Minn. Oct. 24, 2006) (order). The Manns court was reviewing this court’s dismissal of the state’s appeal from a stay of adjudication in a felony case. The supreme court reversed the dismissal, stating:

We here clarify that our holding in State v. Lee, that stays of adjudication are to be treated as pretrial orders for purposes of appeal, applies only to stays of adjudication in misdemeanor cases. Appeals from stays of adjudication in felony cases are to be treated as appeals from sentencings, from which an appeal may be taken as provided in Minn. R.Crim. P. 28.02, subd. 2, and 28.04, subd. 1, as the court of appeals correctly held prior to Lee in State v. Wright, 699 N.W.2d 782 (Minn.App.2005).

Id.

Manns involved the state’s right to appeal a stay of adjudication, rather than the defendant’s, which is at issue here. But the language of the Manns order is broad: stays of adjudication in felony cases “are to be treated as appeals from sentencings.” The order cites Minn. R.Crim. P. 28.02, subd. 2, the rule governing defense appeals, as well as the rule that governs prosecution appeals. We conclude that Manns applies to defense appeals from felony stays of adjudication.

Manns is not a published decision. But this court is bound to follow, supreme court precedent. See Brainerd Daily Dispatch v. Dehen, 693 N.W.2d 435, 439-40 (Minn.App.2005), review denied (Minn. June 14, 2005). There appears to be no authority limiting this duty to the supreme court’s published opinions. The statutes do not distinguish between published and unpublished supreme court opinions. See Minn. Stat. § 480.06 (2006) (requiring written supreme court decisions in all cases decided by it). There is no provision, as there is for this court’s opinions, for the supreme court to issue non-precedential, unpublished decisions. Cf. Minn.Stat. § 480A.08, subd. 3(c) (2006) (authorizing court of appeals to issue unpublished, non-prece-dential opinions). Because Manns expressly states that Manns is clarifying its holding in Lee, a published opinion, this court must assume it was intended to have precedential effect.

Finally, we are mindful that the supreme court, which promulgates the rules of criminal procedure, has the authority to construe those rules as they relate to appellate jurisdiction. See generally State v. Cheng, 623 N.W.2d 252, 257 (Minn.2001) (noting supreme court’s inherent authority includes authority to enact and interpret rules of procedure). Accordingly, this court is bound to apply the clarification in Manns of prior decisions regarding the appealability of stays of adjudication.

Manns also cited with approval this court’s opinion in State v. Wright, 699 N.W.2d 782, 784-85 (Minn.App.2005), which held that the stay of adjudication in the felony case before it was a sentence that the state could appeal under Minn. R.Crim. P. 28.05. Wright noted that the defendant had been sentenced to serve time in jail as a condition of the stay of adjudication and cited prior cases relying on such a term of incarceration to support treating stays of adjudication as sentences. Id. (citing State v. Lattimer, 624 N.W.2d 284, 286-87 (Minn.App.2001), review denied (Minn. May 15, 2001), and State v. Angotti, 633 N.W.2d 554, 556 (Minn.App.2001)). Allinder also was ordered to serve a jail term as a condition of the stay of adjudication. We do not read Manns as holding that probationary jail time is required to make a felony stay of adjudication a sentence, or final judgment, for purposes of appellate jurisdiction. But the probationary jail term imposed here further supports that result in this case.

DECISION

Because the stay of adjudication imposed in this felony case is a sentence for purposes of appellate jurisdiction, this appeal was properly taken.

Jurisdiction accepted.