State v. Niska

• Decision Date: 25 March 1994
• Docket Number: No. C4-92-1478,C4-92-1478
• Citation: 514 N.W.2d 260
• Parties: STATE of Minnesota, Petitioner, Appellant, v. Charlotte NISKA, Harvey Niska, Respondents.
• Court: Minnesota Supreme Court

Page 260

514 N.W.2d 260

STATE of Minnesota, Petitioner, Appellant, v.Charlotte NISKA, Harvey Niska, Respondents.

No. C4-92-1478.

Supreme Court of Minnesota.

March 25, 1994.

Rehearing Denied May 4, 1994.

Syllabus by the Court

1.Once a defendant charged under Minn.Stat. Sec. 609.26, subds. 1(1) and 1(3)(Supp.1985) fairly raises the statutory defense under section 609.26, subd. 2, the state must disprove that defense beyond a reasonable doubt.

2.Subdivision 2 of Minn.Stat. Sec. 609.26(Supp.1985) is not a codification of the necessity defense.

3.The 1988amendment to Minn.Stat. Sec. 609.26,1988 Minn.Laws, ch. 523, altering subdivisions 2(1) and 2(2), does not apply to offenses committed before August 1, 1988.

4.The state cannot establish the offense of false imprisonment under Minn.Stat. Sec. 609.255 or kidnapping under Minn.Stat. Sec. 609.25 where the child's parent having legal and physical custody consents to the removal of the child.

5.False imprisonment, Minn.Stat. Sec. 609.255, is a lesser included offense of kidnapping, Minn.Stat. Sec. 609.25.

Hubert H. Humphrey, III, Atty. Gen., 102State Capitol, St. Paul, and Michael O. Freeman, Hennepin County Atty., and J. Michael Richardson, Asst. County Atty., Minneapolis, for appellant.

Renee J. Bergeron and Peter W. Gorman, Asst. Public Defenders, Minneapolis, for respondents.

Heard, considered, and decided by the court en banc.

PAGE, Justice.

The state and the defendants, Charlotte and Harvey Niska, have sought review of portions of the decision of the court of appeals in a pre-trial appeal by the state.The Niskas were charged by complaint with seven offenses: (1) deprivation of custodial, parental or visitation rights under Minn.Stat. Sec. 609.26, subd. 1(1)(Supp.1985);(2) deprivation of custodial or visitation rights under Minn.Stat. Sec. 609.26, subd. 1(3)(Supp.1985);(3) aggravated forgery under Minn.Stat. Sec. 609.625, subd. 3(1986);(4) aggravated forgery under Minn.Stat. Sec. 609.625, subd. 3(Supp.1987);(5) kidnapping under Minn.Stat. Sec. 609.25, subds. 1(2) and 2(1)(1984);(6) false imprisonment under Minn.Stat. Sec. 609.255, subd. 2(1984); and (7) aggravated forgery (uttering) under Minn.Stat. Sec. 609.625, subd. 3(1982).The trial court dismissed counts 2, 3, 4, 5, and 6 for lack of probable cause.In addition, the trial court ruled that the Niskas could present evidence of a Minn.Stat. Sec. 609.26, subd. 2, affirmative defense to the jury and required that the state must prove the non-existence of that defense beyond a reasonable doubt.

On appeal to the court of appeals, the state challenged the trial court's dismissal of counts 2, 5, and 6 and its ruling that the Niskas could present evidence of a Minn.Stat. Sec. 609.26, subd. 2, affirmative defense.The state also challenged the trial court's conclusion that once the Niskas established the defense by a preponderance of the evidence, the state was then required to prove the non-existence of the defense beyond a reasonable doubt.The court of appeals found that the trial court erred in dismissing the deprivation of custodial or visitation rights and kidnapping charges, but that it properly dismissed the false imprisonment charge.499 N.W.2d 820.The court also found that for acts committed prior to August 1, 1988, the trial court erred in concluding that the statutory defense set out in Minn.Stat. Sec. 609.26, subd. 2, required a reasonable belief that the Niska's actions were necessary to protect Dominique and that the Niskas were required to prove the statutory defense by a preponderance of the evidence.

Charlotte and Harvey Niska(the Niskas) are the parents of Jody Niska Twerefour(Jody Niska) and the grandparents of Dominique Niska, Jody's daughter.Dominique was born on April 5, 1981.Jody was unmarried at the time and no father was identified on the child's birth certificate.By affidavit of paternity dated March 5, 1982, Peter Karlsson stated that he was Dominique's father and, with Jody Niska's consent, his name was added to the birth certificate.At other times in 1982 and 1983 both Karlsson and Jody Niska acknowledged Karlsson's paternity.On January 28, 1983, the juvenile court, on the Niskas' petition, issued an order giving temporary legal custody to Karlsson and shared physical custody to Karlsson and the Niskas.

During the summer of 1983, Dominique's guardian ad litem alleged Karlsson physically abused and neglected Dominique.In October of 1983, reports of sexual abuse of Dominique by Karlsson were filed with the St. Louis Park and Roseau police.The allegations were not substantiated.

In 1983, after these allegations had been made, Jody Niska was given physical and legal custody of Dominique.At that time, Karlsson also received limited supervised visitation.

The state claims that Dominique and Jody disappeared in September of 1985.The Niskas claim that in October of 1985 Jody gave them physical custody of Dominique.They further claim that in 1986, with Jody Niska's consent, they and the child moved to Arizona.On February 4, 1986, the juvenile court gave Karlsson unsupervised visitation rights, but because the Niskas had moved without leaving a forwarding address, Karlsson was not able to exercise his visitation rights.

In January of 1991, authorities located Dominique and arrested the Niskas in Black Canyon, Arizona.During the time of the Niskas' and Dominique's disappearance, the Niskas are alleged on two occasions to have used a court order giving them sole legal and physical custody, to enroll Dominique in school.That court order contained the forged signature of Hennepin County District Court Judge Allen Oleisky.

Before this courtthe state challenges the court of appeals' interpretation of Minn.Stat. Sec. 609.26, subd. 2, for acts committed prior to August 1, 1988.The state claims that under the statutethe defendants bear the burden of proving by a preponderance of the evidence that they reasonably believed that their actions were necessary to protect Dominique and that the statutory defense is merely a codification of the common law necessity defense.The state also raises the issue as to whether count six, the false imprisonment count, was properly dismissed by the court of appeals.For their part, the Niskas challenge the reinstatement of the kidnapping charge by the court of appeals.

We first consider the issue of the proper interpretation of the 1985 version of Minn.Stat. Sec. 609.26.The state charged the Niskas under the statute in effect in 1985 and contends that the trial court erred in allowing the Niskas to assert "an affirmative defense" under subdivision 2 of that statute because the Niskas cannot establish any element of the common law defense of necessity.¹The state's position that subdivision 2 codifies the common law necessity defense rests on its understanding of what the legislature intended to accomplish in amending the statute in 1988.

In 1985, the portions of subdivision 2 relevant to this case read:

No person violates subdivision 1 if the action:

(1) is taken to protect the child from physical or sexual assault or substantial emotional harm; [or]

* * * * * *

(3) is consented to by the parent, stepparent, or legal custodian seeking prosecution.

In 1988 these portions of subdivision 2 were amended to read:

It is an affirmative defense if a person charged under subdivision 1 proves that:

(1) the person reasonably believed the action taken was necessary to protect the child from physical or sexual assault or substantial emotional harm; [or]

* * * * * *

(3) the action taken is consented to by the parent, stepparent, or legal custodian seeking prosecution, but consent to custody or specific visitation is not consent to the action of failing to return or concealing a minor child.

1988 Minn.Laws, ch. 523(emphasis added).

The state contends that the 1988amendment to Minn.Stat. Sec. 609.26, subd. 2, merely clarified and did not alter the meaning of the 1985statute.The state argues that for the Niskas to avail themselves of the defense, they must establish that they reasonably believed their actions were necessary to protect Dominique, and further, they must prove their belief was reasonable by a preponderance of the evidence.In support of its position, the state notes that section 2 of the amending act, 1988 Minn.Laws, ch. 523, is entitled "Original Intent Clarified"² and offers excerpts from House and Senate Committee hearings in which the amendment was discussed.³The state urges us to find our decision in Nardini v. Nardini, 414 N.W.2d 184, 196(Minn.1987), controlling.In that casewe held that an amendment to a spousal maintenance statute would be applied retroactively.

To these contentions, the Niskas respond first that the statutory defense under Minn.Stat. Sec. 609.26, subd. 2, is not a codification of the common law defense of necessity, but rather states an exemption to the criminal prohibition and thus, the prosecution has the burden of proving the exemption does not apply and the defense has no burden of production.The Niskas' second response is that to apply the 1988amendments to the 1985 law would violate the prohibition against ex post facto criminal laws, since under their interpretation of the 1985statute, they had neither the burden of persuasion nor production.

We find the state's arguments unconvincing.In State v. Charlton, 338 N.W.2d 26(Minn.1983), we held that the Fourteenth Amendment prohibited shifting the burden of proof on the element of intent to a criminal defendant.Id. at 29.In that casewe noted that defendants pleading self-defense or entrapment need only fairly raise those defenses and then the burden of disproving them beyond a reasonable doubt falls on the state.Id.;see alsoState v. Grilli, 304 Minn. 80, 96, 230 N.W.2d 445, 456(1975).We then held that the constitution required the same allocation of burdens for the defense of duress.Charlton, ...