This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
A05-722
State
of Minnesota,
Respondent,
vs.
Duane
G. Elliot,
Appellant.
Filed February 7, 2006
Affirmed
as modified
Klaphake, Judge
Wright County
District Court
File
No. K3-02-1554
Mike Hatch,
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Thomas N.
Kelly, Wright County Attorney, Anne L. Mohaupt, Assistant County Attorney,
Wright County Government Center, Ten Second Street NW, Buffalo, MN 55313 (for respondent)
John M. Stuart, State Public Defender, Philip Marron,
Assistant State Public Defender, 2221
University Avenue Southeast, Suite 425, Minneapolis,
MN 55414 (for appellant)
Considered and decided by Toussaint, Chief
Judge, Klaphake,
Judge, and Minge,
Judge.
U N
P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
Appellant
Duane Gene Elliot
challenges the district court’s denial of his request for jail credit for all
time spent in custody since April
22, 1990, which he claims is the date on which the state had probable cause to
arrest him for the current offense.
Because the information reportedly received by law enforcement was
insufficient to provide authorities with probable cause to arrest or charge appellant
in 1990, we affirm the district court’s denial of appellant’s request for jail
credit from 1990. But, because probable
cause existed as of January 24, 2002, when the victim reported the crime to
authorities, we modify the district court’s decision and grant jail credit as
of that date.
FACTS
On January 24, 2002, K.N.E. contacted the Wright County
Sheriff’s Department to report that between 1984 and 1987, when she was between
eight and nine years old, she was sexually abused on at least three occasions
by appellant, who is her uncle. K.N.E.
explained that she sought counseling over the years and that she wanted to
report the incidents for closure. A
complaint was signed on April 30, 2002, charging appellant with first- and
second-degree criminal sexual conduct.
On November 18, 2003, appellant pleaded guilty to
second-degree criminal sexual conduct and the remaining count was
dismissed. In January 2004, appellant
was sentenced to a stayed term of 44 months and placed on probation for 25
years subject to a number of conditions, including that he serve one year in
the Wright County Jail and refrain from the use of alcohol. Appellant had already served the one year
probationary jail term by the time of sentencing and was released on probation.
On September 8, 2004, a probation violation report was
filed against appellant after he failed to abstain from the use of
alcohol. The report recommended that
appellant obtain a further chemical use assessment, follow the recommendations
of that assessment, and serve an additional 120 days in the county jail.
At a September 30, 2004 hearing, appellant requested
execution of his 44-month sentence. He
also requested that he be given jail credit for time that he served on
unrelated offenses that were committed after the current offense; appellant had
been sentenced to 41 months in 1989 and to 36 months in 1990 on criminal sexual
conduct convictions involving other victims in Hennepin
and Anoka
counties. With credit for time served on these
unrelated offenses, appellant’s sentence on the current offense would be
satisfied, and he would serve no additional time.
In support of his request for jail credit, appellant
submitted two documents prepared by defense investigator Jeff Shaw. The first document summarized Shaw’s
interview of K.N.E.’s mother, Jeanette
Hendrickson. Hendrickson told Shaw
that she had called the sheriff’s office in the late 1980’s or early 1990’s to
report that K.N.E. had been sexually assaulted by appellant. According to Shaw, Hendrickson informed the
person on the other end of the line about “all the facts involved in this
sexual assault, where it may have occurred, [that K.N.E.] was around 10 years
old at the time of the offense and parties involved.” When the person erroneously informed
Hendrickson that the matter could not be prosecuted because the statute of
limitations had run, Hendrickson did not pursue the matter further.
In the second document, Shaw
explained that when he contacted the Wright County Sheriff’s Office, no records
could be located pertaining to Hendrickson’s complaint. However, Shaw was
able to obtain a copy of a statement given by K.N.E.’s cousin, A.E., on April
22, 1990, in which A.E. reported that
appellant had sexually assaulted her and that appellant “did stuff to my cousin
[K.N.E.] too.”
In denying appellant’s request for jail credit, the
district court concluded that appellant failed to present sufficient evidence
to show that probable cause existed as of April 22, 1990, which is the date
that K.N.E.’s cousin gave her statement to authorities in Anoka County. The court explained that “[t]his statement is
too vague to supply probable cause” because “it is not clear that the word
‘stuff’ describes activities that rise to the level of criminal sexual conduct”
and because it “fails to establish the age of K.N.E.”
With
respect to the information provided to authorities by K.N.E.’s mother, the
district court concluded that because “it is not clear on the record [here]
what was actually said during this conversation,” appellant failed to prove
that the state had probable cause in 1990.
The district court determined that appellant was entitled to jail credit
from April 30, 2002, which is the date that the prosecutor signed the
complaint.
D E C I S I O N
Determinations
of jail credit are not discretionary with the district court. State
v. Parr, 414 N.W.2d 776, 778 (Minn. App.
1987), review denied (Minn. Jan. 15, 1998); State v. Doyle,
386 N.W.2d 352, 354 (Minn. App. 1986). A
defendant is entitled to credit for all time spent in custody, including time
spent in custody on other charges, beginning with the date the prosecution
acquired probable cause to charge the current offense. State
v. Fritzke, 521 N.W.2d 859, 861-62 (Minn.
App. 1994). Probable cause exists when
police “reasonably could have believed that a crime had been committed by the
person to be [charged or] arrested.” State v. Morales, 532 N.W.2d 268, 270 (Minn. App. 1995) (quoting State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989)).
The
burden is on the defendant to prove probable cause and entitlement to jail
credit. State v. Willis, 376 N.W.2d 427, 428 n.1 (Minn. 1985).
Probable cause generally does not exist until police investigation is
complete, but any ambiguity regarding when investigation is complete is to be resolved
in favor of the defendant. Morales, 532 N.W.2d at 270; State v. Folley, 438 N.W.2d 372, 374-75
(Minn. 1989).
The
district court determined that the evidence presented by appellant was insufficient
to establish that probable cause existed in 1990. We agree.
From Shaw’s summary of his interview with
Hendrickson, one cannot ascertain exactly what was said during Hendrickson’s
conversation with the unidentified person at the sheriff’s office. Similarly, the transcribed statement given by
A.E. to authorities is vague and lacks the specificity necessary to establish
probable cause. While the evidence presented
here might have given authorities a basis to investigate the matter further, it
lacks the requisite detail and reliability which are necessary components for
probable cause. We therefore affirm the
district court’s denial of appellant’s request for jail credit from 1990.
Nevertheless,
we note that the district court granted appellant jail credit only from April
30, 2002, the date the prosecutor signed the complaint, rather than from
January 24, 2002, the date that K.N.E. reported the crime to authorities. Because any ambiguity must be resolved in
favor of appellant, we conclude that once authorities received this detailed
and reliable information from K.N.E., probable cause existed. We therefore modify the district court’s
decision to grant jail credit from January 24, 2002.
Affirmed as modified.