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Supreme Court reverses ruling in auto theft that went nowhere

In the context of a criminal statute, to “take” a motor vehicle does not necessarily mean to “move” it or drive it, the Supreme Court held on Sept. 6 in State v. Thonesavanh.

There were two ways to reach that conclusion, a painstaking grammatical construction of an ambiguous statute, concluding that movement is not required for a taking; or a plain meaning point of view, concluding that movement is not required for a taking.

Justice David Stras

Justice David Stras

The former was the majority view, authored by Justice David Stras; and the latter was a concurrence authored by Justice G. Barry Anderson and joined by Chief Justice Lorie Gildea. It was partially joined by Justice Margaret Chutich.

The majority declined to apply the rule of lenity; the concurrence by Anderson and Gildea said it was not necessary to reach but decided to address it in view of the majority’s opinion. Chutich did not join in the concurrence’s discussion of the rule of lenity.

The opinion reverses the Court of Appeals, which had affirmed the Nobles County District Court’s dismissal for lack of probable cause.

In pari materia

The defendant locked himself in a car owned by J.V. that was left running. The defendant had earlier knocked on J.V.’s door, and since it was early in the morning and the defendant was a stranger, J.V. called the police. The officer eventually persuaded the defendant to get out of the car and then arrested him for theft of a motor vehicle under Minn. Stat. 609.52, subd. 2(a)(17) (see sidebar).

There are three elements to the crime — taking or driving a motor vehicle without consent and with mens rea.  Only the first is at issue in the opinion. The issue was framed as whether adversely possessing a vehicle, even for a brief period, rises to the level of a taking.

While the word “drives” contemplates movement, the meaning of “takes” is less clear, Stras wrote. No dictionary definition determines whether movement is required in a taking of a vehicle, and therefore the statute is ambiguous, he wrote.

The majority then turned to three canons of construction that led it to conclude that all that is required to “take” a motor vehicle is to adversely possess it.

The canon against surplusage disfavors a construction of “takes” that incorporates “movement” because it favors giving each word or phrase in a statute a distinct, if not identical, meaning, Stras wrote. However that canon does not completely address the question because the words take and drive do overlap in meaning.

Thus the court turned to the doctrine of in pari materia, which applies only to ambiguous statutes and allows two statutes with common purpose and subject matter to be construed together to determine the meaning of ambiguous statutory language. The rationale for the canon is that related statutes should be considered as one systematic body of law.

Applying the in pari materia canon, the court has previously held that even temporary control or dominion over property amounts to simple robbery.

“If the crimes of simple robbery and theft are simply different degrees of the same crime, it would make little sense for us to ascribe one meaning to the word ‘takes’ in the simple-robbery statute — adverse possession of property belonging to another — but an entirely different meaning to the same word in the motor-vehicle-theft statute — movement of the property,” Stras wrote.

A contrary holding would violate a corollary of the canon, which is that a legislative body generally uses a particular word with a consistent meaning in a given context, the court continued.

The third canon applied by the majority explains that when a statute uses a common-law term without defining it the Legislature has adopted its common-law meaning. The motor-vehicle-theft statute has retained the framework of common-law larceny, the court said. Although the statute defines theft as taking or driving the motor vehicle, the element of “takes” still originates from the common law.

“Given the common-law origins of the modern theft statute, the retention of the word ‘takes’ to describe the actus-reus element of the offense indicates that we should define the term in accordance with its common-law meaning, consistent with the direction provided by the imputed-common-law-meaning canon,” Stras wrote.

Accordingly, the court held that to take a motor vehicle under the statute requires only adverse possession.

Not the grand canon

The court then examined, and rejected, the rule of lenity, a canon that requires a court to construe an ambiguous criminal statute in favor of the defendant.

The rule of lenity applies only after all the other canons of construction have been exhausted and a “grievously ambiguous” statute remains, Stras wrote. “It is not, as some courts have suggested, some sort of grand canon that towers over all the others and allows a defendant to prevail in every instance in which a criminal statute is ambiguous,” he wrote.

The court declined to use the rule to adopt a construction of “takes” that requires movement where multiple other canons favor an adverse-possession construction.

“[T]he rule of lenity appears to be in a class of one among the canons of construction, because it dictates a result — the defendant wins — rather than unmasks the meaning of the statute itself. Indeed, strict application of the canon would render all other canons — both intrinsic and extrinsic — meaningless once a court has declared a criminal statute ambiguous,” Stras wrote. The court said in State v. Nelson in 2014, that the rule of lenity applies if the statute remains ambiguous after canons of construction are applied, the court noted.

Lenity will rarely apply

The dissent argued that the text of the statute is unambiguous and the rule of lenity need not be applied as the majority did.

The case law supports the construction that the motor-vehicle-theft statute unambiguously does not require carrying away, Anderson wrote.  Because “takes” unambiguously does not require movement the court need not reach the lenity issue, Anderson said. But since the court did so, he went on to address it.

Several cases suggest that the court has applied the rule of lenity without exhausting the other canons of construction, Anderson wrote.  He continued, “Even when we have described the rule of lenity as one of last resort, we have rarely ruled against the defendant when presented with an ambiguous criminal statute.”

Among possible interpretations, “the court has arguably chosen the least defendant-friendly option for both the rule of lenity’s position among other interpretive aids and the amount of ambiguity that must exist for the rule of lenity to apply. The result is a rule of lenity that will rarely apply,” Anderson continued.

Defense attorney Mark Nyvold declined to comment on the case. Nobles County attorney Kathleen A. Kusz could not be reached for comment.

Minn. Stat. § 609.52, subd. 2(a)(17)

The statute states in relevant part as follows: (a) Whoever does any of the following commits theft . . . : . . . (17) takes or drives a motor vehicle without the consent of the owner or an authorized agent of the owner, knowing or having reason to know that the owner or an authorized agent of the owner did not give consent . . . .

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