State v. Cox

798 N.W.2d 517, 2011 Minn. LEXIS 320, 2011 WL 2340533

• Court: Supreme Court of Minnesota
• Decided: June 15, 2011
• Docket: No. A09-1958
• Status: Published

Opinions

OPINION

GILDEA, Chief Justice.

This case involves a question certified to the court of appeals raising an equal-protection challenge to appellant’s prosecution under the dishonored-check statute, Minn. Stat. § 609.535 (2010). The dishonored-check statute provides in some circumstances for harsher penalties than the theft-by-eheck statute, Minn. Stat § 609.52, subd. 2(3)(i) (2010), and appellant relies on this disparity to support her equal-protection challenge. The court of appeals concluded that appellant had not established an equal-protection violation and answered the certified question in the negative. Because we conclude appellant, who has been charged with writing a dishonored check, is not similarly situated for equal-protection purposes to a person who commits theft by check, we affirm.

Respondent State of Minnesota charged appellant Diane Cox with issuing dishonored checks with a value of more than $500, in violation of Minn.Stat. § 609.535, subd. 2a(a)(l), which is a felony. The complaint alleged that in December 2008, Cox issued five checks totaling $515.83 to businesses in Benson, Minnesota. The bank returned the checks to the businesses marked as funds not available. Each business sent, via certified mail, a notice and demand for payment of dishonored check to the address listed for Cox on the check, but Cox did not pay the dishonored checks.

Cox filed a motion to dismiss, arguing that the sentencing disparity between the dishonored-check statute, Minn.Stat. § 609.535, and the theft-by-check statute, MinmStat. § 609.52, subd. 2(3)(i), violated her constitutional right to equal protection of the law because issuing a dishonored check is a lesser-included offense of theft-by-check, yet it is punished more harshly than the greater offense. The district court denied Cox’s equal-protection challenge but also found the issue presented was “so important or doubtful as to require a decision of the Court of Appeals” and certified a question for appellate review.

The question certified to the court of appeals by the district court was:

Does the disparity in the severity of punishment between MinmStat. § 609.535, subd. 2a(a)(l) and MinmStat. § 609.52, subd. 3(4), which arguably contemplate the same acts committed under the same circumstances by persons in like situations (writing worthless checks with an aggregate value over $500), constitute an Equal-Protection Violation as applied to Defendant and those similarly charged statewide?

The court of appeals answered the certified question in the negative. State v. Cox, No. A09-1958, 2010 WL 2572562, at *5 (MinmApp. June 29, 2010). We granted Cox’s petition for review.

I.

A certified question is a question of law that we review de novo. Cargill, Inc. v. Ace Am. Ins. Co., 784 N.W.2d 341, 347 (Minn.2010). The constitutionality of a statute also presents a question of law, subject to de novo review. State v. Melde, 725 N.W.2d 99, 102 (Minn.2006). We presume that Minnesota statutes are constitutional and will strike down a statute as unconstitutional only if absolutely necessary. Id. To prevail, a party challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute violates a constitutional provision. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979).

A.

The relevant statutes at issue in this case are the dishonored-check statute and the theft-by-check statute. Issuing a dishonored check is a lesser-included offense of theft by check. State v. Roden, 384 N.W.2d 456, 457 (Minn.1986) (“The greater offense of theft by check involves a defendant issuing a check knowing he is not entitled to do so (ie.[,] knowingly issuing a bad check) as part of a scheme whereby he intentionally defrauds another person into transferring property to him.”).

The dishonored-check statute prohibits a person from “issuing] a check which, at the time of issuance, the issuer intends shall not be paid.” Minn.Stat. § 609.535, subd. 2. The statute further provides that intent may be shown by proof that: (1) at the time of issuance, the issuer did not have an account with the drawee; (2) at the time of issuance, the issuer had insufficient funds with the drawee and the issuer failed to pay the check within five business days after a notice of nonpayment was mailed; or (3) when presentment was made within a reasonable time, the issuer had insufficient funds and failed to pay the check within five business days after a notice of nonpayment was mailed. Id., subd. 3.

The penalty for violating the dishonored-check statute varies, depending on the value of the checks at issue. A person convicted of issuing a dishonored check may be sentenced “to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the value of the dishonored check, or checks aggregated ... is more than $500.”¹ Minn.Stat. § 609.535., subd. 2a(a)(l). The offense is a gross misdemeanor “if the value of the dishonored check, or checks aggregated ... is more than $250 but not more than $500.” Id., subd. 2a(a)(2). The offense is a misdemeanor “if the value of the dishonored check, or checks aggregated ... is not more than $250.” Id., subd. 2a(a)(3).

The theft-by-check statute prohibits a person from obtaining property or services of a third person by “intentionally deceiving the third person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made.” Minn.Stat. § 609.52, subd. 2(3) (2010). A false representation includes “the issuance of a check, draft, or order for the payment of money, except a forged check as defined in section 609.631, or the delivery of property knowing that the actor is not entitled to draw upon the drawee therefor or to order the payment or delivery thereof.” Id., subd. 2(3)(i).

The penalty for theft by check also varies, depending on the value of the goods or services stolen.² Minn.Stat. § 609.52, subd. 3 (2010). The penalty for theft by check is “imprisonment for not more than five years” if “the value of the property or services stolen is more than $1,000 but not more than $5,000.”³ Id., subd. 3(3)(a). The offense is a gross misdemeanor if “the value of the property or services stolen is more than $500 but not more than $1,000.” Id., subd. 3(4). The offense is a misdemeanor if “the value of the property or services stolen is $500 or less.” Id., subd. 3(5).

Thus, if a person is charged with theft by check and he or she stole goods or services worth the amount at issue in this case, $515.83, the offense is a gross misdemeanor.⁴ But if a person is charged with issuing dishonored checks in this amount, the offense is a felony. This difference in offense level provides the basis for Cox’s equal-protection challenge.

B.

Cox brings her equal-protection challenge under Article I, Section 2, of the Minnesota Constitution. This section provides that, “No member of this state shall be disenfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” Minn. Const, art. I, § 2.

It is well settled that in order “[t]o establish that [s]he has been denied equal protection of the laws, [Cox] must show that similarly situated persons have been treated differently.” Paquin v. Mack, 788 N.W.2d 899, 906 (Minn.2010); see also State v. Frazier, 649 N.W.2d 828, 837 (Minn.2002) (“The [E]qual [Protection [C]lause guarantees that similarly situated individuals receive equal treatment.”); State v. Mitchell, 577 N.W.2d 481, 492 (Minn.1998) (“The Equal Protection Clause requires that the state treat all similarly situated persons alike.”). We impose this threshold showing “because the guarantee of equal protection does not require that the State treat persons who are differently situated as though they were the same.” Paquin, 788 N.W.2d at 906. And we have routinely rejected equal-protection claims when a party cannot establish that he or she is similarly situated to those whom they contend are being treated differently. See, e.g., Frazier, 649 N.W.2d at 839 (rejecting equal-protection challenge to different penalties for violation of RICO statute and the crime-committed-for-a-gang statute because people who violate each statute are not similarly situated); Heidbreder v. Carton, 645 N.W.2d 355, 376-77 (Minn.2002) (rejecting equal-protection challenge to adoption statutes that treated birth mothers differently than putative fathers because putative father was not similarly situated to a birth mother with respect to their relationship with the child); Mitchell, 577 N.W.2d at 492-93 (rejecting equal-protection claim because 15-year-old defendant, who committed first-degree murder and was tried as an adult, was not similarly situated to 15-year-olds who commit first-degree murder but remain in the juvenile system).⁵

While we have not always followed federal law in interpreting our state Equal Protection Clause, see State v. Russell, 477 N.W.2d 886, 888 (Minn.1991), we have relied on federal law to determine if two groups are similarly situated, see State v. Garcia, 683 N.W.2d 294, 298 (Minn.2004) (explaining that the Equal Protection Clauses of both the United States and Minnesota Constitutions “have been analyzed under the same principles and begin with the mandate that all similarly situated individuals shall be treated alike” (citation omitted) (internal quotation marks omitted)). We have embraced the rationale of the U.S. Supreme Court by explaining that the Equal Protection Clause “does not require the state to treat things that are different in fact or opinion as though they were the same in law.” State v. Behl, 564 N.W.2d 560, 568 (Minn.1997); see also Ri-naldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966) (stating that the Equal Protection Clause “‘does not require things which are different in fact ... to be treated in law as though there were the same.’ ” (alteration in original)) (quoting Tigner v. State of Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 84 L.Ed. 1124 (1940)). In addition, “controlling law is clear that ‘[t]he Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.’ ” Ruberto v. Cnty. of Washington, 572 N.W.2d 293, 299 (Minn.1997) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)). The focus, then, in determining whether two groups are similarly situated is whether they are alike in all relevant respects.

Of particular relevance to that analysis in this case is our jurisprudence holding that when an equal-protection claim challenges the difference in sentences for different offenses, the critical factor is whether the two statutes prohibit the same conduct. In State v. Dietz, the defendants were charged with felony grand larceny for having stolen something with a value of less than $25 from an automobile at night. 264 Minn. 551, 551, 119 N.W.2d 833, 834 (1963). The defendants claimed that their right to equal protection was violated because other statutory provisions made stealing something with a value of more than $25 but less than $100 from an automobile at night petit larceny, which was a misdemeanor. Id. at 554, 119 N.W.2d at 835. We stated that “[e]qual protection of the laws is not denied by a statute prescribing the punishment to be inflicted on a person convicted of crime, unless it prescribes different punishments for the same acts committed under the same circumstances by persons in like situation.” Id. at 558, 119 N.W.2d at 837 (citation omitted) (internal quotation marks omitted). We concluded that there was no equal-protection violation because the statutes did not prohibit the same acts, and “[t]he mere fact that those who steal property of a greater value under like circumstances may be subject to a lesser penalty does not affect defendants.” Id. at 558-59, 119 N.W.2d at 838.

More recently, we addressed the issue of whether the disparity in sentencing between two statutes violated equal protection in Frazier, which involved an as-applied constitutional challenge. 649 N.W.2d at 829. In Frazier, the defendant, who was convicted of having committed a controlled-substance crime for the benefit of a gang, in violation of Minn.Stat. § 609.229 (2000), argued that his right to equal protection was violated because Minnesota’s RICO statute punished criminal conduct similar to that prohibited by the gang statute, but the gang statute imposed a longer sentence. 649 N.W.2d at 829, 837. We rejected his claim because we determined that Frazier was not similarly situated to someone who was convicted of violating the RICO statute. Id. at 839.

We held that “[a] statute violates the equal protection clause when it prescribes different punishments or different degrees of punishment for the same conduct committed under the same circumstances by persons similarly situated.” Id. at 837. To answer this question, we explained that “the critical inquiry is whether the elements of section 609.229 and the RICO statute are the same or essentially similar.” Frazier, 649 N.W.2d at 837. We denied Frazier’s equal-protection claim after focusing on the conduct Frazier admitted to when he pleaded guilty to violating the gang statute and determining that this conduct was insufficient to support a conviction under RICO. Id. at 838-39. We concluded that “Frazier, whose conviction under [the gang statute] was based on the commission of one criminal offense, is not similarly situated to an individual convicted under RICO, whose conviction must be based on his participation in at least three criminal acts.” Id. at 839. Thus, we used the specific conduct of the defendant as a way of showing that the statutes did not prohibit the same conduct, resulting in Frazier not being similarly situated to someone who violated the RICO statute. See id.; see also State v. Barnes, 713 N.W.2d 325, 331-32 (Minn.2006) (rejecting equal-protection challenge to difference in punishment for first-degree domestic-abuse murder and third-degree depraved-mind murder because the two statutes “do not punish identical conduct” based on difference in elements of the offenses).

Our decisions in Dietz and Frazier demonstrate that in order for a defendant to prevail on an equal-protection claim based on the disparity in sentencing for two different offenses, the defendant must first show that a person who is convicted of committing one offense is similarly situated to people who are convicted of committing the other offense.⁶ In order to demonstrate this, a defendant must show that the two statutes prohibit the same conduct because the specific conduct of the defendant would support a conviction for either offense.⁷ Cox’s equal-protection claim fails under this analysis.

We begin this analysis by comparing the two statutes. Under both statutes, the State is required to prove the defendant issued a worthless check. Compare Minn. Stat. § 609.52, subd. 2(3)(i), with Minn. Stat. § 609.535, subd. 2. The statutes, however, have different mens reas. The dishonored-check statute requires the State to prove that when the check was issued, the defendant intended the check not be paid. Minn.Stat. § 609.535, subd. 2. The dishonored-check statute contains a permissible inference, under which the State may prove that a defendant issued a check with the intent that it not be paid by showing that the defendant did not have sufficient funds in her account to cover the check and that she did not pay the check within five business days of a notice of nonpayment being mailed by the payee of the check. Id., subds. 3(2)-3(3); see also State v. Williams, 324 N.W.2d 154, 159-60 (Minn.1982) (discussing permissive nature of this inference).

The theft-by-check statute, on the other hand, requires that the defendant issue a check knowing that she was not entitled to issue it. Minn.Stat. § 609.52, subd. 2(3)(i). Under this statute, the State is also required to prove that “the defendant, at the moment he issued the check, had the intention to defraud the other party by permanently depriving him of his property by never covering the check.” Williams, 324 N.W.2d at 159; see also Minn.Stat. § 609.52, subd. 2(3). The theft-by-check statute does not contain a provision creating a permissible inference similar to the one in the dishonored-check statute indicating that the State can prove the requisite fraudulent intent based only upon the amount of funds in the defendant’s account when the check was written or presented and the defendant’s failure to pay the check within five days after notice of nonpayment was mailed. See Minn.Stat. § 609.52, subd. 2(3).

We next consider whether Cox’s conduct in this case would support a conviction for theft by check. Cox’s conduct must be determined from the record in this case, which consists of the facts alleged in the complaint. In the complaint, the State has alleged that Cox wrote five non-sequential checks to merchants in Benson, Minnesota between December 2, 2008, and December 27, 2008, that were returned to the merchants marked as “insufficient funds.” The complaint further alleges that notices of nonpayment were mailed to Cox, beginning on January 6, 2009, and Cox did not pay the amount of the checks within five business days after the merchants mailed a notice of nonpayment to her. Three of the notices were returned as unclaimed.

Tellingly, Cox never asserted that the State could have charged her with theft by check. In fact, she claimed just the opposite. She specifically argued in her briefs to this court that “the propriety of charging under either statute is not at issue” and that she “has not argued that she was charged with the wrong statute.” She further argued that she “is subject to a felony-level punishment for an act” of issuing worthless checks “that, if performed with a greater level of criminal intent, would otherwise subject her to a gross misdemean- or” under the theft-by-check statute. Thus, Cox contends she could be convicted of theft by check only if she had a more serious mens rea. Based on these statements, Cox essentially contends that she did not commit theft by check.

But even without these concessions, the facts alleged in the complaint would not support a conviction for theft by check.⁸ These facts would not establish that Cox had the specific intent to defraud any of the merchants when she wrote her checks, which is an element of theft by check. See Minn.Stat. § 609.52, subd. 2(3)(i). The facts are silent on whether Cox had adequate funds in her account at the time the checks were written. Instead, the facts relevant to Cox’s mens rea are based entirely on events that occurred after all the checks were written, such as when the notices of nonpayment were sent and Cox’s failure to pay the amount of the checks within five days of the mailing of the notices. The facts do not even demonstrate that Cox was aware of all the notices of nonpayment. In short, Cox has not demonstrated beyond a reasonable doubt that she is similarly situated to a person who commits theft by check because her conduct would not support a conviction for theft by check.

Because we conclude that Cox is not similarly situated to someone who violates the theft-by-check statute, we hold that the different penalties for violations of the theft-by-check statute and the dishonored-check statute do not deny Cox equal pro-teetion of the law.⁹ Consequently, we answer the certified question in the negative.

Affirmed.

STRAS, J., concurring. ANDERSON, PAUL H. and MEYER, JJ., dissenting. PAGE, J., took no part in the consideration or decision of this case.

1 . To determine the penalty, the dishonored-check statute provides that “the value of dishonored checks issued by the defendant in violation of this subdivision within any six-month period may be aggregated.” Minn. Stat. § 609.535, subd. 2a(b).

2 . Under the theft-by-check statute, the value of the goods or services stolen within a six-month period can be aggregated to determine under which penalty provision the defendant should be charged. Minn.Stat. § 609.52, subd. 3(5) (2010).

3 . In some circumstances, theft by check is a felony if the value of the goods or services stolen is less than $1,000, such as when the item stolen is a car or consists of public funds, or when the defendant was convicted of certain offenses within the past 5 years. Minn.Stat. § 609.52, subds. 3(3)(c), 3(3)(d)(iv), and 3(3)(d)(v). None of these provisions are applicable in this case.

4 .This disparity in sentencing between the theft-by-check statute and the dishonored-check statutes appears to be a recent phenomenon. Prior to 2007, the penalties for violating the two statutes essentially mirrored each other. Compare Minn.Stat. § 609.52, subds. 3(3)(a), 3(4), and 3(5) (2006), with Minn.Stat. § 609.535, subd. 2a(a) (2006). In 2007, however, the theft statute was amended so that the amount a person had to steal for the various penalty provisions increased. Act of May 7, 2007, ch. 54, art. 2, § 8, 2007 Minn. Laws 233, 240-41 (codified at Minn.Stat. § 609.52, subd. 3 (2010)). No similar change was made to the dishonored-check statute.

5 . The dissent agrees that in order to establish an equal-protection violation under the Minnesota Constitution, Cox must first make a threshold showing that she is similarly situated to the people she claims are being treated differently than herself. Because we conclude that Cox has not made this showing, it is not necessary to determine whether Cox has also established that the disparity in sentencing between the theft-by-check and dishonored-check statutes fails the rational basis test under the Minnesota Constitution. While the dissent attempts to reconcile our equal-protection case law with respect to the rational basis test under the Minnesota Constitution, that analysis is not necessary to our resolution of this case and we express no opinion on the validity of the dissent’s attempt at reconciliation.

6 . We acknowledge that in some of our cases involving an equal-protection challenge to the difference in sentences for two offenses, we have not expressly concluded the defendant was similarly situated to a person who committed the other offense at issue before resolving the case by analyzing the difference in sentences under a rational-basis test. See State v. Benniefield, 678 N.W.2d 42, 46-48 (Minn.2004); Russell, 477 N.W.2d at 889-91. There is no language in these cases, however, suggesting that a defendant could establish an equal-protection violation if she was not similarly situated to people who commit a different offense and to whom she was comparing herself. See Benniefield, 678 N.W.2d at 46-48; Russell, 477 N.W.2d at 888-91.

7 . The dissent contends that we are applying too stringent a standard by requiring Cox to prove her conduct would support a conviction for both issuing worthless checks and theft by check. Instead, the dissent contends, without any legal support, that Cox "must show that there was probable cause to support a charge of either theft by check or issuing a dishonored check.” The dissent's focus on whether there is probable cause to support a charge under either statute is erroneous. The disparity that is the basis for Cox’s equal-protection challenge is a sentencing disparity. Because a sentence cannot be imposed unless a person is convicted of an offense, the appropriate test is whether Cox could be convicted of both statutes based on her specific conduct. Our precedent so holds. For example, in Frazier we specifically held that the defendant was "not similarly situated to an individual convicted under RICO.” 649 N.W.2d at 839 (stating also that “[b]ecause we conclude that Frazier is not similarly situated to someone who violates RICO, we hold that the different penalties for violations of the [two statutes at issue] do not deny equal protection”) (Anderson, Paul H., J., author).

8 . The dissent relies heavily on State v. Bailey, 263 Minn. 261, 266, 116 N.W.2d 548, 552 (1962), in which the court held there was probable cause to support a charge of felonious intent to defraud by aid of a check. The facts of Bailey, however, are significantly different from this case. In Bailey, the defendant and his friend approached a farmer on July 11, 1961, about buying some of his cattle. Id. at 263, 116 N.W.2d at 550. The farmer agreed to sell the defendant his cows for $4,100 after the defendant told him he had $2,700 in his pocket and that his brother would furnish the rest of the money by July 14. Id. at 263, 116 N.W.2d at 550. The farmer was also told all of the cows would be taken to pasture. Id. at 263, 116 N.W.2d at 550. On July 12, the defendant's friend took possession of the cows and gave the farmer a non-dated check from the defendant. Id. at 263, 116 N.W.2d at 550. The defendant then called the farmer and asked him to date the check for July 14. Id. at 263, 116 N.W.2d at 550. On July 14, the farmer saw some of the cattle being sold. Id. at 263, 116 N.W.2d at 550. The check was cashed on that same day and later returned for nonpayment. Id. at 263-64, 116 N.W.2d at 550. The court determined that these facts established probable cause of an intent to defraud because they showed that "the complainant parted with property of the value of $4,100, for which he received a worthless check; and that the defendant falsely represented that the check would be honored on July 14.” Id. at 266, 116 N.W.2d at 552 (emphasis added). Unlike this case, Bailey involved affirmative misrepresentations by the defendant and the defendant’s sale of the property in a suspect manner shortly after he obtained that property. It was these additional acts, and not the mere issuance of a worthless check, that supported a reasonable inference that the defendant intended to defraud the farmer.

9 . The situation in this case is unusual because the lesser-included offense of issuing a dishonored check is punished more harshly than the greater offense of theft-by-check in some circumstances. The fact that this is unusual, however, does not mean it violates the Equal Protection Clause of the Minnesota Constitution. It is up to the Minnesota Legislature to determine if this sentencing disparity should continue.