In this appeal from an order denying his petition for exoneration compensation, appellant argues that the district court erred by concluding that his conviction for being a felon in possession of a firearm was not vacated based on factual innocence when appellant possessed a BB gun and the Minnesota Supreme Court, years later, concluded that a BB gun is not a firearm within the meaning of the felon-in-possession-of-a-firearm statute. We affirm.
On May 19, 2010, appellant Vaundell Duwayne Kingbird slapped A.R.H., who was pregnant with his child, after she tried to stop him from drinking. Appellant left but later returned to the residence drunk and again slapped A.R.H. That evening, two witnesses saw appellant pushing A.R.H. into a vehicle outside the residence. Both witnesses observed that appellant possessed a black pistol. One of the witnesses called the police. Upon their arrival, the police officers observed appellant walking around the residence and toward the street with his hands in his pockets. The police officers drew their weapons and ordered appellant to show his hands and get on the ground. Appellant continued to walk toward the street and did not remove his hands from his pockets. One of the police officers used his taser on appellant and placed him under arrest. The police officers located a black BB gun behind the residence.
On May 20, 2010, respondent State of Minnesota charged appellant with being a felon in possession of a firearm in violation of Minn. Stat. § 609.165, subd. 1b(a) (2008), two counts of misdemeanor domestic assault in violation of Minn. Stat. § 609.2242, subd. 1(2) (2008), and misdemeanor obstructing legal process in violation of Minn. Stat. § 609.50, subd. 1(2) (2008). Appellant pleaded guilty to the felon-in-possession-of-a-firearm charge and the state dismissed the remaining charges under a plea agreement. Following his plea, the district court sentenced appellant to 60 months' imprisonment, execution of which was stayed for ten years, and placed appellant on probation. In August 2011, the district court revoked appellant's probation after he violated conditions and committed appellant to the commissioner of corrections for 60 months.
In 2016, the Minnesota Supreme Court determined that an air-powered BB gun is not a "firearm" under the felon-in-possession-of-a-firearm statute. State v. Haywood, 886 N.W.2d 485 (Minn. 2016). Later, the state moved to vacate appellant's conviction and dismiss the charge. In January 2017, the district court granted the state's motion, dismissed the charge and vacated appellant's conviction and sentence.
In July 2019, appellant filed an amended petition
Has a defendant been exonerated within the meaning of Minn. Stat. § 590.11, subd. 1(c)(2), when his conviction has been vacated based on a clarification of the law so that the conduct of which the defendant was convicted is no longer criminal, but the conduct did violate the criminal law under then-existing precedent?
The Minnesota Imprisonment and Exoneration Remedies Act (MIERA) allows certain previously-incarcerated individuals to receive compensation after a court reverses their convictions. Buhl v. State, 922 N.W.2d 435, 438 (Minn. App. 2019); Minn. Stat. §§ 590.11, 611.362-.368 (Supp. 2019). "The threshold determination under the exoneration-compensation statute is whether an individual has been exonerated." Back v. State, 902 N.W.2d 23, 26 (Minn. 2017) (quotation omitted). If the individual has been exonerated and meets the other statutory requirements, then the district court must issue an order declaring the individual eligible for compensation. Id.; Minn. Stat. § 590.11, subd. 7. Whether a petitioner is "exonerated" under the statute presents a legal question, which we review de novo. Buhl, 922 N.W.2d at 438.
Minn. Stat. § 590.11, subd. 1(b), provides that "Exonerated" means
(1) a court:
The statute also provides that "On grounds consistent with innocence" means either:
Id., subd. 1(c).
The issue here is whether appellant has established that his conviction was vacated "on grounds consistent with innocence," which requires a showing of "any evidence of factual innocence" under Minn. Stat. § 590.11, subd. 1(c)(2). In 2010, appellant was convicted for being a felon in possession of a firearm in violation of Minn. Stat. § 609.165, subd. 1b(a), after he admitted that he possessed a BB gun. His guilty plea was based on established caselaw at the time. See State v. Seifert, 256 N.W.2d 87, 87-88 (Minn. 1977) (stating that term
But in 2016, the supreme court in Haywood held that "an air-powered BB gun is not a `firearm' under the plain meaning of Minn. Stat. § 609.165." 886 N.W.2d at 487. In reaching this conclusion, the supreme court observed that neither section 609.165 nor Minn. Stat. § 609.02, the definitions section for Minnesota Statute Chapter 609, define "firearm." Id. at 488. The supreme court noted that it had previously "construed the word `firearm' in the context of the definition of a `dangerous weapon' under Minn. Stat. § 609.02." Id. (citing Seifert, 256 N.W.2d at 87-88 (holding that a.177-caliber CO
In its analysis, the supreme court looked to the dictionary definition of "firearm" and concluded that "dictionaries consistently define `firearm' as including only weapons that use explosive force." Id. at 490. The supreme court determined that, because Haywood possessed an air-powered BB gun, which used compressed air rather than gunpowder or any other explosive force as propellant, Haywood's possession of a BB gun did not violate section 609.165. Id. The supreme court reversed the decision of the court of appeals and vacated Haywood's conviction. Id. at 491. Because the supreme court has now clarified that a BB gun does not qualify as a firearm under Minn. Stat. § 609.165, the district court granted the state's motion and vacated appellant's conviction.
The issue in this appeal is whether appellant qualifies as exonerated under Minn. Stat. § 590.11, subd. 1(c)(2), because
Livingston pleaded guilty to driving while impaired (DWI) by a hazardous substance after he drove under the influence of Difluoroethane. Livingston, 2020 WL 2117602, at *1. Later the supreme court determined that Difluoroethane was not a "hazardous substance" under the impaired-driving statute in effect when Livingston was charged. State v. Carson, 902 N.W.2d 441, 446 (Minn. 2017). The statute in effect prohibited a person from driving, operating, or being in physical control of a vehicle while "the person is knowingly under the influence of a hazardous substance." Id. at 444 (citing Minn. Stat. § 169A.20, subd. 1(3) (2014)). Under the statute, "hazardous substance" was defined as "any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health)." Id. (citing Minn. Stat. § 169A.03, subd. 9). The commissioner of labor and industry promulgated the rules in Minnesota Rules Chapter 5206 in accordance with Minnesota Statutes Chapter 182 (2016). Id.; see Minn. Stat. § 182.655. The rules defined "hazardous substance" and included a list of hazardous substances in alphabetical order. Carson, 902 N.W.2d at 444; see Minn. R. 5206.0400, subp. 5. The rule acknowledged that the list "does not include all hazardous substances and will not always be current." Carson, 902 N.W.2d at 444 (citation omitted). The supreme court determined that Difluoroethane was not a hazardous substance because it was not listed as a hazardous substance in Minnesota Rules Chapter 5206 (2015). Id. at 446. And Carson was not criminally liable under the plain language of the existing DWI statute. Id.
In Livingston, this court explained that the Carson holding made clear that "at the time of Livingston's inhaling Difluoroethane and driving under its influence, his conduct was not illegal under the statute." 2020 WL 2117602, at *3 (citing Carson, 902 N.W.2d at 442). Because the supreme court held that Difluoroethane is not a hazardous substance, given that "the legislature never designated it as such either directly within the statute or indirectly by rule," the supreme court did not alter any prior holding in the Carson opinion. Id. Consequently, the "effect of the supreme court's statutory construction is that any other interpretation was never the law. Difluoroethane had never been a hazardous substance under the law when Livingston inhaled it and drove." Id. (citation omitted). We concluded that when the "charged statute does not actually criminalize the conduct" it presents a circumstance that is "consistent with innocence." Id.
By contrast here, appellant's conduct, his possession of a BB gun, was criminal under established court precedent when he committed the act. The supreme court's clarification of the meaning of the term "firearm" under the felon-in-possession statute in its Haywood decision does
Thus, this case is distinguishable from those cases in which an appellate court vacates a conviction because it determines that (1) an offense was never a crime, or (2) a criminal statute is unconstitutional. See State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998) (holding Minn. Stat. § 609.749, subd. 2(7), unconstitutional and dismissing charges against Machholz); see also State v. Mullen, 577 N.W.2d 505, 512 (Minn. 1998) ("The general rule when the court overrules a rule of law is that the new rule is applied to the case before the court and to claims arising after the date of the overruling decision, but when the court finds a statute unconstitutional, the statute is not a law; it is just as inoperative as had it never been enacted." (quotation omitted)).
Additionally, while the district court vacated appellant's conviction for unlawful possession of a firearm based on the supreme court's clarification of the law in Haywood, we are not persuaded that such a clarification qualifies as "any evidence of factual innocence" under our interpretation of that phrase. We recently interpreted the phrase "any evidence of factual innocence" to mean "any evidence that shows some fact establishing the absence of the petitioner's guilt." Freeman v. State, 944 N.W.2d 488, 491 (Minn. App. 2020). In that case, we rejected Freeman's argument that impeachment evidence about the victim's prior acts of dishonesty constitutes evidence of factual innocence; under the specific facts of that case "it [did] not show [Freeman's] absence from guilt for the charged offenses." Id. at 493. We explained that if a witness came forward and said that a victim had told the witness that the claim against the defendant was fabricated, this could constitute "any evidence of factual innocence." Id. Likewise, we stated that "[o]ther evidence of factual innocence would include DNA evidence establishing someone else committed the charged offense or an alibi witness who testified that a petitioner did not commit the charged offense." Id. at 493 n.5.
Here, although the district court vacated appellant's conviction, it did not do so because appellant offered evidence that a witness had fabricated a claim against him. And appellant presented no DNA or alibi evidence to establish his innocence or any other evidence to show his "lack of guilt for the charged offense[ ]." Rather, the district court vacated appellant's conviction because of a clarification of the term "firearm" in Minnesota law. Appellant was guilty of the crime charged when he committed it. The only change is that the supreme court has now clarified that a BB gun is not a firearm under the felon-in-possession statute. Nor has appellant provided any evidence demonstrating that the facts underlying the crime he committed have changed so as to make him factually innocent of that crime. The district court did not err when it denied appellant's petition for an order declaring him eligible for compensation based on exoneration.
A defendant is not exonerated within the meaning of Minn. Stat. § 590.11, subd. 1(c)(2), when the defendant's conviction has been vacated based on a clarification of the law so that the admitted-to conduct is