State of Minnesota v. Alec Evert Adolfson ( 2017 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0617
State of Minnesota,
Appellant,
vs.
Alec Evert Adolfson,
Respondent
Filed January 30, 2017
Affirmed
Worke, Judge
Chisago County District Court
File No. 13-CR-15-500
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Janet Reiter, Chisago County Attorney, Beth A. Beaman, Assistant County Attorney,
Center City, Minnesota (for appellant)
Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for respondent)
Considered and decided by Bratvold, Presiding Judge; Worke, Judge; and Stauber,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
In this sentencing appeal, the state argues that the district court erred by denying its
motion for an order requiring respondent to provide a biological sample for DNA analysis.
Because respondent’s misdemeanor conviction did not arise out of the same set of
circumstances as a felony offense with which he was charged but not convicted, we affirm.
FACTS
Respondent Alec Evert Adolfson was charged with three counts: (1) fifth-degree
possession of a controlled substance; (2) fourth-degree driving while impaired (DWI)—
under the influence of a combination of any two or more elements of alcohol, a controlled
substance, or a hazardous substance; and (3) fourth-degree DWI—alcohol concentration
(AC) of 0.08 or more. Adolfson reached a plea agreement with appellant state and pleaded
guilty to counts one and three.
At his plea hearing, Adolfson admitted that after he was pulled over for traffic
violations, a police officer smelled marijuana coming from his vehicle. The officer asked
Adolfson if there was marijuana in the vehicle. Adolfson admitted that there was and gave
the officer multiple bags of marijuana. The marijuana weighed over 230 grams.
Adolfson also admitted that during the same traffic stop, the officer noticed that
Adolfson appeared to be under the influence of alcohol. Adolfson had previously drunk
six or seven beers. Adolfson was taken to the county jail where he consented to a breath
test. The test showed that Adolfson had an AC of 0.12.
At sentencing, the district court convicted Adolfson of fourth-degree DWI, a
misdemeanor. Minn. Stat. § 169A.27, subd. 2 (2014). On the felony count of fifth-degree
possession of a controlled substance, Minn. Stat. § 152.025, subd. 2(a)(1) (2014), the
district court stayed adjudication of guilt under Minn. Stat. § 152.18, subd. 1 (2014). The
state moved for an order requiring Adolfson to provide a biological sample for DNA
2
analysis. Although Adolfson was not convicted of a felony, the state argued that the DWI
conviction arose out of the same set of circumstances as the felony controlled-substance
offense and required the court to order Adolfson to provide the sample. Because Adolfson
was convicted only of the alcohol-related DWI, the district court determined that his
conviction did not arise out of the same circumstances as the controlled-substance offense
and denied the state’s motion. This appeal followed.
DECISION
The state argues that the district court erred by denying its motion for an order
requiring Adolfson to provide a biological sample for DNA analysis. When the district
court “sentences a person charged with committing or attempting to commit a felony
offense and the person is convicted of that offense or of any offense arising out of the same
set of circumstances,” the district court must order the “offender to provide a biological
specimen for the purpose of DNA analysis.” Minn. Stat. § 609.117, subd. 1(1) (2014).
Because adjudication of guilt was stayed on the controlled-substance offense, Adolfson
was not “convicted” of a felony. See Dupey v. State, 868 N.W.2d 36, 39 (Minn. 2015)
(stating that a stay of adjudication under Minn. Stat. § 152.18, subd. 1, is not a conviction).
The state argues, however, that the felony controlled-substance offense and the
misdemeanor DWI conviction arose out of the “same set of circumstances” and therefore
Adolfson must submit a DNA sample.
The facts underlying the controlled-substance and DWI offenses were admitted by
Adolfson at his plea hearing and are not in dispute. We review the district court’s
3
application of a statute to undisputed facts de novo. State v. Lopez, 778 N.W.2d 700, 705
(Minn. 2010); State v. Meland, 616 N.W.2d 757, 759 (Minn. App. 2000).
There is no caselaw interpreting the language “arising out of the same set of
circumstances” in Minn. Stat. § 609.117, subd. 1(1). The supreme court, however, has
interpreted identical language in Minn. Stat. § 243.166, subd. 1b(a)(1) (2014). That statute
requires a person to register as a predatory offender if charged with a felony specified in
the statute and convicted of “that offense or another offense arising out of the same set of
circumstances.” Minn. Stat. § 243.166, subd. 1b(a)(1).
In Lopez, two brothers were each charged with aiding and abetting a first-degree
controlled-substance crime and two counts of aiding and abetting kidnapping. 778 N.W.2d
at 701. They were convicted of the controlled-substance crime, but the kidnapping charges
were dismissed. Id. at 702. The district court required the brothers to register as predatory
offenders because it concluded that the kidnapping charges “arose out of the same set of
circumstances” as the controlled-substance crime. Id. The brothers had sold
methamphetamine to a police informant. Id. At the time of the sale, the informant could
not pay the full price and agreed to pay the remaining amount at a later date. Id. Ten days
later, when the informant still had not paid, the brothers held the informant and his friend
hostage in a garage for forty minutes while the informant arranged to pay the debt. Id.
The supreme court concluded that the kidnapping charges did not arise out of the
“same set of circumstances” as the controlled-substance crime. Id. at 706-07. While the
conviction offense and charged offense need not be based on identical facts, “the facts
underlying the two must be sufficiently linked in time, location, people, and events to be
4
considered the ‘same set of circumstances.’” Id. at 706. It is not enough that the conviction
offense and the charged offense “arise from ‘related circumstances’” or “share a single
‘related circumstance.’” Id. Instead, the two offenses must “arise from one ‘same set of
circumstances.’” Id. The kidnapping and controlled-substance offenses in Lopez shared
“at most one single common circumstance—payment of a debt from the drug sale.” Id.
They did not arise “out of the same set of circumstances” because the kidnapping took
place ten days after the drug sale, in a different place, with slightly different people, and
involved a different set of events. Id.
As in Lopez, Adolfson’s DWI conviction and controlled-substance offense involve
at most one common circumstance—they were discovered during the same traffic stop.
Possession of a controlled substance is “a continuing offense” that “is complete when the
offender takes possession of the prohibited item.” State v. Bakken, 883 N.W.2d 264, 270
(Minn. 2016). We do not know when or under what circumstances Adolfson took
possession of the marijuana, but the mere fact that the marijuana was in his possession
when he was driving while impaired by alcohol does not mean that the two offenses arose
“out of the same set of circumstances.”
The DWI offense was the result of Adolfson choosing to drink six or seven beers
and drive his vehicle. It in no way involved the use or possession of marijuana. Similarly,
the controlled-substance offense arose from Adolfson’s possession of marijuana, which
had no connection to Adolfson’s consumption of alcohol and decision to drive.
Adolfson was charged with a second DWI for driving while under the influence of
a combination of any two or more elements of alcohol, a controlled substance, or a
5
hazardous substance. See Minn. Stat. § 169A.20, subd. 1(4) (2014) (setting forth the
elements of this offense). Presumably this charge related to Adolfson’s alcohol and
marijuana use. But Adolfson did not admit to and was not convicted of this offense. He
was convicted only of the alcohol-related DWI.
The controlled-substance offense and DWI conviction did not arise “out of the same
set of circumstances.” While the two offenses were discovered at approximately the same
time, no circumstances connect the actual commission of the crimes. The district court did
not err by denying the state’s motion to require Adolfson to provide a biological specimen
for DNA analysis.
Affirmed.
6