State v. Burns, C9-94-332

• Decision Date: 06 December 1994
• Docket Number: No. C9-94-332,C9-94-332
• Citation: 524 N.W.2d 516
• Parties: STATE of Minnesota, Respondent, v. Gary Neal BURNS, Appellant.
• Court: Minnesota Court of Appeals

Page 516

524 N.W.2d 516

STATE of Minnesota, Respondent, v. Gary Neal BURNS, Appellant.

No. C9-94-332.

Court of Appeals of Minnesota.

Dec. 6, 1994.

Review Denied Jan. 13, 1995.

Syllabus by the Court

The legislature's extension of the limitations period does not violate the ex post facto provisions of the United States and Minnesota Constitutions when the underlying offense is not yet time barred.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Michael O. Freeman, Hennepin County Atty., Mark V. Griffin, Asst. County Atty., Minneapolis, for respondent.

John M. Stuart, State Public Defender, Marie L. Wolf, Asst. State Public Defender, Minneapolis, for appellant.

Considered and decided by SHORT, P.J., and RANDALL and JONES ^*, JJ.

OPINION

SHORT, Judge.

A jury convicted Gary Neal Burns of one count of criminal sexual conduct in the first degree in violation of Minn.Stat. § 609.342, subd. 1(h)(iii) (1992), and acquitted Burns of another criminal sexual conduct charge against a different victim. The trial court sentenced Burns to the presumptive term of forty-three months in prison. On appeal, Burns argues: (1) his prosecution was barred by the United States and Minnesota Constitutions' prohibition of ex post facto laws; and (2) there is insufficient evidence to sustain the conviction.

FACTS

Burns married his high school sweetheart later in life after re-establishing contact with her. Their son (born 1980) and Burns's wife's son from a previous marriage (born 1975) lived with them.

In 1986, Burns's 6-year-old son and 11-year-old stepson were removed from the home because the boys claimed their mother was physically abusing them. That same year, Burns and his wife separated. During the investigation that followed these allegations of abuse, neither boy reported any sexual abuse by Burns. Child protection officials concluded the mother was physically abusing the children, and each boy went to live with his respective father. In 1990, Burns and his wife reconciled. The couple lived with their biological son and their new baby. The stepson continued to live with his biological father.

In 1993, Burns's stepson, then 17 years old, accused Burns of sexually abusing him from August 2, 1982 through February 28, 1986. When questioned by authorities, Burns's 13-year-old biological son also alleged that Burns sexually abused him during the same period. Burns denied these allegations. The state charged Burns with two counts of criminal sexual conduct. A jury convicted Burns of sexually abusing his stepson, but acquitted him on the charge relating to his biological son.

ISSUES

I. Does the legislature's retroactive extension of the limitations period for an offense which was not yet time barred violate the United States and Minnesota Constitutions' prohibition of ex post facto laws?

II. Was the evidence sufficient to support the conviction?

ANALYSIS

I.

The construction of a statute is a question of law for the court, and is subject to de novo review on appeal. Doe v. Minnesota State Bd. of Medical Examiners, 435 N.W.2d 45, 48 (Minn.1989); State v. Moore, 431 N.W.2d 565, 567 (Minn.App.1988). We therefore need not defer to the trial court's findings regarding the validity of Minn.Stat. § 628.26(c) (1992) (limitation on indictments or complaints for criminal sexual conduct if victim was under age 18). Moore, 431 N.W.2d at 567.

One who challenges the constitutionality of a statute must overcome every presumption in favor of its constitutionality. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979); see Minn.Stat. § 645.17(3) (1992) (courts are to presume the legislature does not intend to violate the constitution of the United States or of this state). An appellate court's power to declare a statute unconstitutional is to be exercised only when absolutely necessary and then with extreme caution. In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989).

Burns argues the charges against him should have been dismissed because the legislature's extension of the applicable statute of limitations violates the ex post facto provisions of the United States and Minnesota Constitutions. U.S. Const. art. I, § 10, cl. 1; Minn. Const. art. I, § 11. A criminal law falls within the ex post facto prohibition if: (1) it applies to events occurring before its enactment; and (2) it disadvantages the offender affected by it. Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987).

By complaint dated July 15, 1993, the state charged Burns with criminal sexual conduct occurring between 1982 and 1986. At the time the criminal conduct occurred, the limitations period for the offense was seven years. See Minn.Stat. § 628.26(c) (1982) (limitation on indictments or complaints for criminal sexual conduct if the victim and the actor were in a familial relationship). Under the 1982 version of the statute of limitations, the last date Burns could have been charged with the offense was February 28, 1993.

In 1989, however, the legislature amended the limitations period for violations of Minn.Stat. § 609.342-.345 (1988) (criminal sexual conduct) if the victim was under age 18. 1989 Minn.Laws ch. 290, art. 4, § 17. Under that version of the statute of limitations, if an offense was not reported within the seven-year limitations period, the limitations period would expire two years after the offense was first reported to law enforcement authorities. Minn.Stat. § 628.26(c) (1990). The 1990 version of the statute of limitations expressly applied to "crimes committed on or after that date, and to crimes committed before that date if the limitations period for the crime did not expire before August 1, 1989." 1989 Minn.Laws ch. 290, art. 4, § 22.

In 1991, the legislature again amended the statute of limitations and applied it retroactively to crimes for which the limitations period did not expire by August 1, 1991. See 1991 Minn.Laws ch. 232, §§ 3, 4 (extending limitations period to three years after the offense was first reported to law enforcement authorities). Because the original limitations period for an offense stemming from Burns's criminal conduct did not expire until February 28, 1993, the legislature's amendments applied to permit the filing of a complaint against Burns in July 1993. The state's criminal complaint was filed within four months of the first report of the offense to the police. Burns acknowledges the charges against him were not time barred under the amended statute of limitations.

Burns claims the amendments deprive him of a defense which would have been available to him under the 1982 version of the statute of limitations. See Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977) (any statute which deprives one charged with a crime of any defense available at the time the act was committed is prohibited as ex post facto). We disagree. The statute of limitations becomes a defense or protection from prosecution only after the limitations period has elapsed. See Clements v. United States, 266 F.2d 397, 399 (9th Cir.) (statute of limitations not a defense to prosecution when it had not run before date of amendment extending it), cert. denied, 359 U.S. 985, 79 S.Ct. 943, 3 L.Ed.2d 934 (1959). As Judge Learned Hand explained:

[I]t is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the state forgives it.

Falter v. United States, 23 F.2d 420, 425-26 (2d Cir.), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1928). Moreover, no ex post facto violation occurs if the change effected is merely procedural and does not increase the punishment, change the elements of the offense, or change the ultimate facts necessary to establish guilt. United States ex rel. Massarella v. Elrod, 682 F.2d 688, 689 (7th Cir.1982), cert. denied, 460 U.S. 1037, 103 S.Ct. 1426, 1427, 75 L.Ed.2d 787 (1983). We conclude that the legislature's retroactive extension of the limitations period before prosecution of the underlying offense is time barred is a merely procedural change which does not violate the constitutional ex post facto prohibition. See id. (holding same).

Burns argues such reasoning should not be applied in Minnesota because the Minnesota Supreme Court has held statutes of limitations to be both procedural and substantive. See State v. Johnson, 514 N.W.2d 551, 555 (Minn.1994) (statutes of limitations are procedural in that they regulate when a party may file a lawsuit and are substantive in that they are outcome determinative). As a matter of constitutional law, however, statutes of limitations go to matters of remedy, not to destruction of fundamental rights. Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945); Johnson, 514 N.W.2d at 555 n. 7; see also State v. Creekpaum, 753 P.2d 1139, 1144 n. 13 (Alaska 1988) (for purposes of ex post facto analysis, criminal statutes of limitations are procedural). The procedural aspects of the statute of limitations predominate in a case such as this one where the limitations period on the underlying offense had not yet expired. Although a statute might violate the constitutions' prohibition of ex post facto laws if it reinstated a prosecution which already had become time-barred, the extension of a still-valid limitations period does not offend either the United States or the Minnesota Constitution. See State v. Traczyk, 421 N.W.2d 299, 300 n. 2 (Minn.1988) (holding that an extension amendment is not afforded retroactive application by reference to standards governing statutory interpretation).

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