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					                                     A12-0058

                            STATE OF MINNESOTA

                              IN SUPREME COURT


                            STATE OF MINNESOTA,

                                                      Appellant,

                                       vs.

                                 DANIEL RICK,

                                                     Respondent.


                         APPELLANT’S REPLY BRIEF

MICHAEL O. FREEMAN                     LANDON J. ASCHEMAN
Hennepin County Attorney               GRANT SMITH
Atty. License No: 0031860              Ascheman & Smith, LLC
Elizabeth R. Johnston                  500 Laurel Avenue
Jane N.B. Holzer                       St. Paul, MN 55102
Assistant Hennepin County Attorney     (612) 217-0077
Phone: (612) 348-5550
FAX: (612) 348-6028
C-2000 Government Center
Minneapolis, MN 55487




ATTORNEYS FOR APPELLANT               ATTORNEYS FOR RESPONDENT
                                           TABLE OF AUTHORITIES

                                                                                                                Page
Minnesota Statutes
Minn. Stat. § 609.02, subd. 10 .................................................................................. 2
Minn. Stat. § 609.185 ............................................................................................... 2
Minn. Stat. § 609.1 ................................................................................................... 2
Minn. Stat. § 609.2241 ................................................................................. 1, 2, 6, 7
Minn. Stat. § 609.2241, subd. 1 ................................................................................ 6
Minn. Stat. § 609.2241, subd. 1(e) ........................................................................... 2
Minn. Stat. § 609.2241, subd. 2(2) ....................................................................... 1, 6
Minn. Stat. § 609.341, subd. 12 ............................................................................ 2, 3
Minn. Stat. § 609.342 ............................................................................................... 4
Minn. Stat. § 609.342, subd. 1(b) ............................................................................. 4
Minn. Stat. § 609.342, subd. 1(g) ............................................................................. 4

Minnesota Cases
City of Minneapolis v. Church Universal & Triumphant, 339 N.W.2d 880
 (Minn. 1983) .......................................................................................................... 8
Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431 (Minn. 2009) ............................. 7
League of Women Voters Minnesota v. Ritchie, 819 N.W.2d 636 (Minn. 2012) ... 8
St. Paul Citizens for Human Rights v. City Council, 289 N.W.2d 402
 (Minn.1979) ............................................................................................................ 8
State v. Ndikum, 815 N.W.2d 816 (Minn. 2012) ..................................................... 1
State v. Peck, 773 N.W.2d 768 (Minn. 2009) .......................................................... 7
State v. Reinke, 343 N.W.2d 660 (Minn. 1984) ....................................................... 4
State v. Rick, 821 N.W.2d 610 (Minn. App. 2012).................................................. 2

Federal Cases
Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793 (1994) ............................... 1




                                                                 2
                                  ARGUMENT
       Appellant State of Minnesota appeals the decision of the Minnesota Court

of Appeals reversing Daniel Rick’s conviction for Attempted First Degree Assault

by Transfer of a Communicable Disease in violation of Minn. Stat. § 609.2241,

subd. 2(2). Appellant respectfully submits the following by way of reply to the

briefs of respondent and amici curiae.

       I.     MINNESOTA STATUTE § 609.2241 DOES NOT
              CREATE A STRICT LIABILITY OFFENSE.

       Rick asserts that Minn. Stat. § 609.2241 creates a strict liability offense.

This question was raised at, but not decided by, the Court of Appeals. It was not

included in the State’s Petition for Review. In the event that the court wishes to

consider the question for purposes of completeness, Rick’s assertion fails.

       Statutes that dispense with mens rea impose strict criminal liability. State

v. Ndikum, 815 N.W.2d 816, 818 (Minn. 2012) (citing Staples v. United States,

511 U.S. 600, 606, 114 S.Ct. 1793 (1994)). Mens rea is the element of a crime

that requires “the defendant know the facts that make his conduct illegal.” Id.

Contrary to Rick’s assertion, section 609.2241 explicitly requires the defendant to

know the facts that make his conduct illegal. The statute requires that a person

prosecuted under the statute “knowingly harbors an infectious agent” because he

has received professional advice (1) that he harbors an infectious agent for a

communicable disease; (2) about behavior which might transmit the infectious

agent; and (3) regarding     practical means of preventing transmission of the
infectious agent. Minn. Stat. § 609.2241, subd. 1(c), 2. Further, the statute

criminalizes acts under the umbrella of either an assault or a murder. Id., subd. 2.

Intent is an essential element of the definition of assault, Minn. Stat. § 609.02,

subd. 10, and of first and second degree murder, Minn. Stat. §§ 609.185, 609.19.

Minnesota Statute § 609.2241 does not create a strict liability offense.

       II.    MINNESOTA STATUTE § 609.2241 IS NEITHER
              AMBIGUOUS NOR VAGUE.

       In a footnote, the Court of Appeals’ majority opinion notes that “[e]ven the

state acknowledged, at oral argument, that the definition of sexual penetration

under section 609.2241 is problematic because it ‘would include with or without

ejaculation,’ recognizing that this qualifier is contained in the criminal-sexual-

conduct statute that is referred to in section 609.2241.” State v. Rick, 821 N.W.2d

610, 614 n.3 (Minn. App. 2012). Respondent and the Court of Appeals also point

to the state’s argument in its brief to the Court of Appeals that the plain, common

sense reading of the entire statute including the definition section is that subparts

(1) and (2) effectively address separate sets of acts – unprotected and unwarned

sexual penetration without proof of emission of sperm on the one hand and sexual

or blood-borne transmission of sperm regardless of proof of either penetration or

warning.     Each asserts that this supports the conclusion that the statute is

ambiguous and/or vague.

       The state certainly acknowledges that section 609.341, subd. 12, which is

referenced and further qualified in section 609.2241, subd. 1(e), includes the



                                          2
language “whether or not emission of semen occurs”. Whether that language is

“problematic” or not is a different question.      Regardless of what was asked,

understood, or answered in the give and take of oral argument, the point remains

that the statute establishes the elements that the state must prove beyond a

reasonable doubt in order to achieve a conviction under any of the subparts.

       Subparts (1) and (2) both encompass a behavior combined with, essentially,

an aggravating factor. In the case of subpart (1), the state must prove sexual

penetration, as defined in subdivision 1(e) and by extension in section 609.341,

subd. 12, accompanied by non-disclosure. The state agrees with Judge Collins’

reading of section 609.341, subdivision 12, and conclusion that the list of acts in

subdivision 12 is modified by the phrase “whether or not emission of semen

occurs”. However, in the context of subpart (1), whether there was or was not

emission of semen is irrelevant to proof of the crime. If both the act of sexual

penetration and the lack of disclosure are readily proven, this subpart is likely to

be charged by the prosecutor.       Such proof might or might not also include

evidence that emission of semen did or did not occur. That evidence is extraneous

to the question of whether the state has satisfied the elements of subpart (1).

       On the other hand, in the case of subpart (2), a behavior known to be a

mode of direct transmission, which includes sexual transmission, must be

accompanied by sperm. In the case of sexual transmission, that would occur in the

form of emission of semen. Where both a qualifying sexual act and transfer of

sperm through emission of semen are readily proven, a prosecutor would likely


                                          3
charge this subpart. The evidence proving these elements might or might not also

include evidence that there was or was not disclosure of the defendant’s status.

Again, though, evidence of whether or not disclosure occurred is extraneous to

proof of subpart (2).

       That evidence necessary to one subpart but extraneous to another subpart

was presented does not create either ambiguity or constitutional infirmity. It is

common in criminal cases that one set of circumstances might establish or

potentially establish multiple crimes or multiple versions of the same crime. The

state may choose to present one, some, or all theories to the jury; the jury is then

tasked with determining whether some, none, or all of the theories are proven

beyond a reasonable doubt.

       For example, Minn. Stat. § 609.342, Criminal Sexual Conduct in the First

Degree, prohibits sexual penetration of a complainant younger than 16 years of

age by a person more than 48 months older and either in a position of authority

over the complainant, subd. 1(b), or with a significant relationship to the

complainant, subd. 1(g). A 15 year old complainant’s parent’s significant other

might satisfy both, either, or neither of those subparts, depending on the particular

circumstances of the case. A prosecutor might choose to present one or the other

or both charges to the jury based on their assessment of the evidence likely to

come in. The existence and/or presentation of evidence that overlaps two subparts

and the possibility that the jury might accept or reject some or all of that evidence

does not make either subpart of the statute invalid or confusing. See, e.g., State v.


                                         4
Reinke, 343 N.W.2d 660, 661-62 (Minn. 1984) (rejecting argument that because

appellant believed his behavior better fit into a different criminal sexual conduct

statute, criminal sexual conduct statutes suffer vagueness and due process

problems). The same is true in this case: an act of sexual penetration1 might fit

one, the other, or both subparts of the statute depending on the other circumstances

present.

       III.   THE BRIEFS SUBMITTED BY THE AMICI
              CURIAE DO NOT ALTER THE LEGAL
              ANALYSIS.

       The briefs submitted by the amici curiae Minnesota AIDS Project

(“MAP”), and the Association of Nurses in AIDS Care, the HIV Medicine

Association of the Infectious Diseases Society of America, and the National

Alliance of State and Territorial AIDS Directors (“associations of medical

providers in AIDS care”) provide this Court with valuable facts about the

historical context out of which this statute grew, prevailing medical care for

HIV/AIDS patients, and statistics regarding current transmission rates and life

expectancies of people living with HIV/AIDS. The brief submitted by amici

curiae American Civil Liberties Union, American Civil Liberties Union of

Minnesota, Center for HIV Law and Policy, Lambda Legal Defense and Education

Fund and OutFront Minnesota offers perspective on two potential constitutional

challenges to the statute. The state agrees that the organizations joining in the


1
 An act that constitutes sexual penetration as defined in the statute would also
necessarily satisfy the “sexual transmission” language pertinent to subpart (2).

                                         5
amici curiae offer key services to Minnesotans and that all the organizations are

positioned to provide relevant and useful perspective on this particular statute.

However, for the following reasons, these considerations should not and must not

alter the court’s analysis of the statute.

A.     The Extra Factual Record and Policy Considerations Are Not Properly
       Addressed To The Court.

       The briefs submitted by MAP and the associations of medical providers in

AIDS care highlight the context in which Minn. Stat. § 609.2241 was passed – the

legislation was passed as a reaction to fear of an unknown, yet devastating, disease

that affected primarily the gay male community. The brief of the associations of

medical providers in AIDS care further highlights the significant progress the

medical community has made in the care and treatment for people living with HIV

and AIDS. The state has no present evidence to challenge the conclusions put

forth by the associations of medical providers in AIDS care – there is simply no

evidence from the trial court in the record. However, neither the climate in which

a statute was passed, nor subsequent medical progress affects the state’s proffered

plain language analysis that “transfer” means “direct transmission,” which means

by “predominately sexual or blood-borne transmission.” Minn. Stat. § 609.2241,

subd. 1. Rather, this information is appropriately directed to the legislature, the

body entrusted with weighing and applying such policies.

       Additionally, MAP offers its perspective on how Minn. Stat. § 609.2241,

subd. 2(2) could be contrary to public health prevention efforts of HIV and other



                                             6
communicable diseases. It is not this Court’s role to second guess the weight the

legislature has given to particular and possibly conflicting policy considerations in

drafting and approving a statute. The state does not disagree that the policy

considerations put forth by MAP are important and should be considered in the

future by the appropriate body. The state’s position is, however, that the

Legislature – when it was drafting this legislation – already weighed these policy

considerations against the perceived benefits. As such, the court cannot now

override the Legislature’s judgment when it drafted Minn. Stat. § 609.2241. See

State v. Peck, 773 N.W.2d 768, 772 (Minn. 2009); Laase v. 2007 Chevrolet Tahoe,

776 N.W.2d 431, 440 (Minn. 2009) (“[P]ublic policy arguments should be

advanced to the Legislature, the body that crafted the language that compels the

result here.”).

       Finally, the Hennepin County Attorney’s Office does not take a position as

to the general value of this statute. That is a judgment left solely to the legislature.

The office was presented with a fact pattern whereby the specific acts of one

sexual predator harmed other people.2 This office determined that this statute best



2
  Rick presently has three felony cases pending in Hennepin County. In MNCIS
27-CR-10-13313, Rick is alleged to have committed Assault in the First Degree –
Knowing Transfer of Communicable Disease against one victim and Attempted
Assault in the First Degree – Knowing Transfer of Communicable Disease against
a second victim. In MNCIS 27-CR-10-7892, Rick is alleged to have committed
Criminal Sexual Conduct in the Third Degree and Attempted Assault in the First
Degree – Knowing Transfer of Communicable Disease against a third victim. In
MNCIS 27-CR-10-2167, Rick is alleged to have committed Failure to Register as
a Predatory Offender during a period of 12 years. These cases are on hold pending

                                           7
addressed this defendant’s harmful actions. The office’s use of the statute in this

particular circumstance is no more and no less than that.

B.     Equal Protection And The Right To Procreate Are Not Before The
       Court.

       In raising arguments related to equal protection and the right to bear

children, amicus ACLU improperly seeks to expand the scope of this appeal with

issues not presented by the parties on appeal. See League of Women Voters

Minnesota v. Ritchie, 819 N.W.2d 636, 645 (Minn. 2012) (“Generally, we do not

decide issues raised by an amicus that are not raised by the litigants themselves”,

particularly where the issue is not of jurisdiction, standing, or other topic that the

court could raise itself); City of Minneapolis v. Church Universal & Triumphant,

339 N.W.2d 880, 882 (Minn. 1983) (“But the rule in Minnesota is that amicus

curiae may not raise issues as to the constitutionality of a statutory provision when

such an issue is not raised by the parties to the action); St. Paul Citizens for

Human Rights v. City Council, 289 N.W.2d 402, 407 (Minn.1979) (declining to

review constitutional issues not presented by the parties at the district court).




outcome of the instant appeal. Additionally, Appellant was convicted of Criminal
Sexual Conduct in the Third Degree involving a minor in 71-CR-10-159.

                                           8
                                 CONCLUSION

       Appellant respectfully requests that the court of appeals be reversed and the

conviction be reinstated.


DATED: February 7, 2013                   Respectfully submitted,




                                          MICHAEL O. FREEMAN
                                          Hennepin County Attorney
                                          Attorney License No. 0031860
                                          C-2000 Government Center
                                          Minneapolis, MN 55487
                                          Telephone: (612) 348-5550
                                          FAX: (612) 348-6028

                                          Elizabeth R. Johnston
                                          Jane N.B. Holzer
                                          Assistant Hennepin County Attorneys
                                          ATTORNEYS FOR APPELLANT




                                         9
                                    A12-0058

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS



State of Minnesota,

                           Appellant,              CERTIFICATION OF BRIEF
                                                          LENGTH
      vs.

Daniel Rick,

                           Respondent.



      I hereby certify that this brief conforms to the requirements of Minn. R.

Civ. App. P. 132.01, subds. 1 and 3, for a brief produced with a proportional font.

The length of this brief is 2109 words. This brief was prepared using Microsoft

Word 2003, Times New Roman font face size 13.


Dated: February 7, 2013                         _________________________
                                                MICHAEL O. FREEMAN
                                                Hennepin County Attorney
                                                Attorney License No. 0031860
                                                C-2000 Government Center
                                                Minneapolis, MN 55487
                                                Phone: (612) 348-5550
                                                FAX: 612) 348-6028




                                         10

				
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