State Supreme Court ruling pivots on to 'to,' or not to 'to'

Defense attorney: Robber not guilty because use of force did not overcome clerk’s resistance

By Kevin Featherly
BridgeTower Media Newswires

MINNEAPOLIS, MN - Savonte Maurice Townsend committed the simple robbery for which she was convicted, the Minnesota Supreme Court said in a unanimous decision, and her 51-month sentence is upheld.

But when the facts are run through the harrow of arcane statute, the way she did it created a grammatical brain teaser that split the court, 4-3, into concurring factions.

Justice Paul Thissen, a former Minnesota House speaker, wrote the concurrence, joined by Chief Justice Lorie Gildea and Justice G. Barry Anderson.

In it, Thissen argued that while the majority rightly decided the case, it got there using a rigid statutory interpretation that, while reasonable, wasn't the only possibility.

"By holding that the state's interpretation is the only reasonable interpretation, the court imposes its preference rather than truly ascertaining the Legislature's intent," Thissen wrote.

Justice Anne McKeig wrote for the majority, saying, "The use of force is the characteristic element that differentiates robbery from theft, not whether the amount of force is sufficient to deter or avert a victim's resistance."

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The facts

Given the debate, the case's facts are surprisingly straightforward. In May 2017, Townsend and another unnamed woman entered a St. Louis Park Trader Joe's liquor store and tucked some bottles into their purses. When a male store clerk told them to pay up, they ran into the store's entryway.

There the clerk grabbed Townsend's shirt. She yelled at her companion to fetch mace to use on him. The clerk then pushed Townsend against a wall while trying to wrench the purse away. She threatened him and tried to bite his arm.

The store clerk recoiled and let go. But when Townsend moved to run she slipped and fell, whereupon the clerk reengaged and again grabbed at her purse. The tug of war continued outside onto Excelsior Street, where the employee finally recovered the bottles that remained unbroken and let Townsend go. She ran away.

She was later charged with simple robbery. Following a bench-trial conviction, she was sentenced to 51 months in prison. The Court of Appeals affirmed and the Supreme Court granted review. It heard oral arguments at Fairmont High School on Oct. 9, 2019.

The issue before the court, as framed by Assistant Appellate Public Defender Julie Loftus Nelson, was one of statutory interpretation.

Does the plain language of Minn. Stat. Sec. 609.24 require the state to prove that Townsend's use of or threat to use force overcame the clerk's resistance or compelled his acquiescence to her taking the bottles?

"The answer to that question is yes," she told the justices. "That is how the statute reads and that is what the legislature intended."

Townsend never overcame the clerk's resistance and the property was not ultimately taken, the lawyer argued, so a successful robbery was never completed. Townsend was guilty only of an attempted crime, Nelson argued, and her conviction on the violent felony charge should be reversed.

"I am not arguing that because she did not successfully get away with it that she's not guilty," Nelson said. "I am arguing that she was not guilty because she did not overcome the clerk's resistance or compel his acquiescence in the taking or carrying away."

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Muddled modifier

The simple-robbery statute drones on for 84 words, but the litigants' highly syntactical arguments swirled around just this fragment: "uses . . . force against any person to overcome the person's resistance."

That phrase, Nelson said, begs questions about the meaning of the infinitive term "to overcome"-and even the meaning of the word "to" in connection with the use of or threat to use force.

To Nelson, "to" in that context means "in order to." In other words, the statute talks about force's use in order to complete the crime. Read that way, she argued, simple robbery requires that force succeed in accomplishing the crime. Otherwise, it is only an attempted crime.

In fact, she argued in her brief, to read the statute any other way is potentially to render all attempted-crime statutes moot.

Assistant Hennepin County Attorney Jon Schmidt saw the things differently-and he tried to steer justices away from grammar back to the facts. "Determining the common and ordinary meaning of the words in a statute should not require a master's degree in English or linguistics," he wrote in his brief.

When lawmakers rewrote Minnesota's criminal code in 1963, they weren't focused on the niceties of grammar, Schmidt argued, but on protecting citizens from crime.

"I'm not entirely sure that in 1963 the Legislature was thinking about adverbial infinitives," he told the justices.

Yet Schmidt pinned part of his argument to an adverbial infinitive. The phrase "to overcome," he argued, does not modify the word "uses," as the defendant argued. It modifies the word "force."

To Schmidt, then, the crime of simple robbery was completed the instant Townsend tried to bite the clerk and he let her go.

In that moment, she successfully gained dominion over the liquor bottles through her attempt to exert force-so her lack of success in the use of force is irrelevant. To see things differently, he said, would be to flip the analysis from the defendant's behavior in the commission of a crime onto the victim.

"If we get into that," he argued, "then we're looking at, in the cage match of a simple robbery, who's going to be the victor?"

Textbook ruling

The statute is unambiguous, the majority ruled in agreeing with Schmidt. Its explanation reads like a high-school grammar text.

"Following Townsend's interpretation, the phrase 'to overcome' would describe the type of force required: force that actually overcomes resistance," the ruling says.

"In contrast," it continues, "the state argues that the infinitive phrase functions as an adverb and modifies the verb 'uses.' Because we conclude that the position presented by the state is the only reasonable interpretation, the statute is unambiguous."

(The majority also offers a helpful hint to writers, borrowed from a legal style manual: The phrase "in order to" often can be replaced with "to," because they actually mean the same thing.)

The state's interpretation, the majority ruled, not only is supported by statute but case law-particularly the court's 1981 ruling in State v. Kvale, which required only that the use or threat of force precede an attempt to commit a robbery for that crime to be considered complete.

"Townsend's interpretation of 'to overcome' is unreasonable because it ignores the distinctive nature of simple robbery," Associate Justice Anne McKeig wrote for the majority. "The use of force is the characteristic element that differentiates robbery from theft, not whether the amount of force is sufficient to deter or avert a victim's resistance."

That finding means the state showed sufficient evidence for the crime and the conviction was upheld, she wrote.

In his concurrence, Thissen disagrees both with the majority and both litigants, holding that the statute is ambiguous. Because both sides' grammatical arguments are reasonably supportable, Thissen argued, the statute is open to interpretation and, therefore, ambiguous.

Because that's true, he writes, it is permissible to delve into the legislature's intent in both writing and, in 1963, rewriting the simple-robbery statute. In going through that exercise, his concurrence finds room to squarely side with Townsend.

Without repeating here the text of original law, which spans 113 words and exudes the faint aroma of powdered wigs, it's fair to say that Thissen thinks it required the successful use of force for a simple robbery conviction. And because the 1963 rewrite was a recodification, not a law change, it still does.

But the evidence in the Townsend case shows exactly that occurred, Thissen wrote. Because she held dominion over the stolen bottles, if only for a matter of seconds, after trying to bite the clerk and while attempting to run away, the conviction was on solid ground.

"In other words, she overcame the employee's resistance by moving the bottles toward the exit despite the employee's resistance," Thissen wrote. "Accordingly, sufficient evidence supports Townsend's robbery conviction."

Published: Tue, Mar 31, 2020