State v. Thonesavanh

CONCURRENCE

ANDERSON, Justice,

(concurring).

I agree that the motor-vehicle-theft statute does not require movement of the vehicle and, therefore, I would reverse the court of appeals. But I depart from the court’s reasoning because the text of the statute is unambiguous and the rule of lenity need not be applied as the.court applies it. •

I.

First, I address the text of the statute. As relevant here, the motor-vehicle-theft statute states that any person who “takes or drives a motor vehicle without the consent of the owner” commits theft. Minn. Stat. § 609.52, subd. 2(a)(17) (2016). Tho-nesavanh argues that “takes” is ambiguous as to whether a person must move the vehicle to commit theft. The court agrees with Thonesavanh, but I do not.

We construe statutory language according to its plain and ordinary meaning. State v. Struzyk, 869 N.W.2d 280, 284 (Minn. 2015). The word “take” has many definitions. See The American Heritage Dictionary of the English Language 1774-75 (5th ed. 2011) (defining “take” over '80 ways). Although some definitions require carrying or moving, see id. at 1774 (“4a. To carry in one’s possession”), most definitions fdcus on possession or control, see id. (“1. To get in one’s hands, control, or possession ... 6. To make use of or select for use ... 8. To accept, receive, or assume”). We have said that simply “[because a word has more than one meaning does not mean it is ambiguous.” Bd. of Regents of Univ. of Minn. v. Royal Ins. Co. of Am., 517 N.W.2d 888, 892 (Minn. 1994). Instead, “only if more than one meaning applies within that context does ambiguity arise.” Id. Therefore, when a word had two definitions, but one would create redundancy in the statute, we held that the statute unambiguously used the definition that did not make the statute redundant. Id.

*443Here, interpreting “takes”, to require movement would not make “drives” redundant because motor vehicles can be moved without being driven, such as by towing or pushing them. Nevertheless, because motor vehicles are almost always moved by driving them, interpreting “takes” to require movement would create substantial overlap with “drives.” Therefore, interpreting “takes” to not require movement is the more natural reading of the statute.

Our case law also supports the conclusion that “takes” does not require movement. The motor-vehicle-theft statute at issue here is similar to common law larceny.1 At common law, larceny required three elements: (1) trespass, (2) taking and carrying away the property, and (3) property that belongs to another person. 3 Wayne R. LaFave, Substantive Criminal Law §§ 19.2-19.4 (2d ed. 2003). “Taking” and “carrying away” were treated as two distinct elements. Id. § 19,3(a)-(b). Although “carrying away” required movement, “taking” did not. Id,

For example, in State v. Madden, the defendant argued that he- could not be convicted of larceny of a motor vehicle because “he never exercised complete control or dominion over the thing taken, and that there was no asportation of the automobile.” 137 Minn. 249, 163 N.W. 507, 508 (1917). In other words, he argued that he neither took nor carried away the vehicle. We rejected both arguments. Id. We discussed the two arguments separately, first addressing the “taking” element by saying, “[t]he control or dominion over the automobile did not last long, but we do not see why it was not complete and absolute for a time.” Id. In the next paragraph, we separately addressed the argument “that there was no ‘carrying away’ ... based on the idea that defendant and his companion were unable to 'get farther than they did[.]” Id. We concluded, “clearly the car was moved a sufficient distance to constitute larceny.” Id.

Our analysis in Madden establishes that at common law, the “carrying away” element of larceny required movement, but the taking element did not. We presume that the Legislature was aware of the common law when it drafted the criminal code and did not intend to modify it except to the extent expressly declared or clearly indicated in the statute. See Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn. 2000). Therefore, by requiring only taking or driving, the motor-vehicle-theft statute unambiguously does not require carrying away—that is, it does not require movement.

II.

Because I conclude that “takes” unambiguously does not require movement, I *444would not reach the rule of lenity issue. See State v. Peck, 773 N.W.2d 768, 772 (Minn. 2009) (“When the statutory language is not ambiguous, we do not apply the rule of lenity”). Nevertheless, because the court reaches the issue, I will address it here.

The court concludes that the rule of lenity applies only as a last resort—after all other canons of construction are exhausted and a grievous ambiguity remains. We have at times described the rule this way. State ex rel. Duncan v. Roy, 887 N.W.2d 271, 278 n.7 (Minn. 2016) (“[T]he rule of lenity should be used to resolve ambiguity in criminal statutes when a grievous ambiguity or uncertainty in the statute remains after this court has considered other canons of statutory construction.” (citation omitted) (internal quotation marks omitted)); State v. Nelson, 842 N.W.2d 433, 443 (Minn. 2014) (stating that the rule of lenity applies “when ‘a grievous ambiguity or uncertainty in the statute’ remains after we have considered other canons of statutory construction” (quoting Dean v. United States, 556 U.S. 568, 577, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009))).

On the other hand, in several other cases our analysis suggests that we have previously applied the rule of lenity without exhausting the other canons of construction. For example, in State v. Stevenson, 656 N.W.2d 235, 238-39 (Minn. 2003), we were presented with three different possible interpretations of the statute. We rejected one interpretation, concluding that it would frustrate the legislative intent. Id. at 239. But that left us with two remaining possible interpretations. Id. We applied the rule of lenity to adopt the narrower interpretation. Id. Notably, we mentioned that it might have been possible to decide which interpretation to adopt based on a vagueness analysis and the canon of constitutional avoidance, but we concluded that, “[i]n light of our holding on lenity grounds[,] ... we need not address the issue of vagueness.” Id. at 639 n.2.

In State v. Maurstad, we said that, “when the language of a criminal law is ambiguous, we construe it narrowly according to the rule of lenity.” 733 N.W.2d 141, 148 (Minn. 2007). We decided that the statute was ambiguous, recognized that the choice between two interpretations was a “close call,” and ruled in favor of the defendant, concluding that “all reasonable doubt concerning legislative intent should be resolved in favor of the defendant.” Id. at 150 (quoting State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002)). The dissent in Maurstad objected to this analysis, arguing that “[t]he rule of lenity applies only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what [the Legislature] intended.” Id. at 155 (Gildea, J., dissenting) (quoting Muscarello v. United States, 524 U.S. 125, 138, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998)). Specifically, the dissent argued that we should have considered “commission policy and official commission interpretation” before applying the rule of lenity. Id. (quoting State v. McGee, 347 N.W.2d 802, 805-06 (Minn.1984)).

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. See, e.g., Nelson, 842 N.W.2d at 444; State v. Rick, 835 N.W.2d 478, 485-87 (Minn. 2013) (holding that the communicable-disease statute was ambiguous, and ruling for the defendant based on the rule of lenity and relevant legislative history); State v. Leathers, 799 N.W.2d 606, 611 (Minn. 2011) (ruling for the defendant in light of an ambiguous criminal statute based on the doctrine of in pari materia and the rule of lenity). The court cites only two instances in which we have ruled *445against a defendant when a criminal statute was ambiguous. First, in State v. Sullivan, we held that there was “some ambiguity” in the statute and we resolved that ambiguity in favor of the State by reading the statute as a whole. 245 Minn. 103, 71 N.W.2d 895, 900 (1955). But because we never discussed the rule of lenity, Sullivan is of little help here. Second, in State v. Al-Naseer, we were' presented with five possible interpretations of the statute: two that the State supported, one that the district court applied, one that the defendant advocated, and one that the court of appeals applied. 734 N.W.2d 679, 684 (Minn. 2007). Although the court is correct that we ruled in favor of the State because we accepted one of the State’s proposed interpretations, we did not adopt the least defendant-friendly of the options. Id. at 685-89. In fact, we used the rule of lenity to reject the more extreme interpretation supported by the State. Id. at 685-86.

Because our case law is not clear or consistent about what the rule of lenity is, it is appropriate to, consider here what the rule of lenity should be. There are two issues regarding how the rule of lenity applies. The first issue is when in relation to other methods of statutory interpretation the rule of lenity applies. There are four possible options. First, the rule of lenity could apply whenever there is any ambiguity in a criminal statute. See Zachary Price, The Rule of Lenity As A Rule of Structure, 72 Fordham L. Rev. 885, 894 (2004) (describing this option but concluding that it “has not been clearly articulated in judicial opinions”). Under this approach, the court would look neither to canons of construction nor legislative history to attempt to resolve the ambiguity before applying the rule of lenity. Second, the rule of lenity could apply after our traditional canons of construction but before resorting to legislative history. See United States v. R.L.C., 503 U.S. 291, 307, 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992) (Scalia, J., concurring) (“In my view it is not consistent with the rule of lenity to construe a textually ambiguous penal statute against a criminal defendant on the basis of legislative history.”). Third, the rule of lenity could function as one factor to consider equal to the other interpretive aids. See White v. State, 318 Md. 740, 569 A.2d 1271, 1274 (1990) (“[A]s a principle of statutory construction, [the rule of lenity] should be used like other principles of statutory construction as an aid in ascertaining legislative intent with respect to a statutory offense.... [L]ike other canons of statutory construction, the rule of lenity is neither absolute nor exclusive.”). Unlike the other three approaches, applying the rule of lenity does not always result in a ruling in the defendant’s favor. Finally, the rule of lenity could apply absolutely last—only if ambiguity remains after resorting to both canons of construction and legislative history. See Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990) (stating that the rule of lenity applies “after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute” (quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980))). The court seems to have adopted this latter approach.

The second issue concerns the level of ambiguity that must exist for the court to apply the rule of lenity. The Supreme Court of the United States has supplied at least four different answers to this question. First, the Court has applied the rule of lenity only when “there is a grievous ambiguity or uncertainty in the statute.” Muscarello v. United States, 524 U.S. 125, 139, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (citations omitted) (internal quotation marks omitted); Second, the Court has applied the rule of lenity only when a pro*446posed interpretation “can be based on no more than a guess as to what Congress intended.” Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958). Third, the Court has applied the rule.,of lenity whenever “a reasonable doubt persists about a statute’s intended scope.” Moskal, 498 U.S. at 108, 111 S.Ct. 461. Finally, the Court has described the rule of lenity as applying whenever the interpretive tools “fail to establish that the Government’s position is unambiguously correct.” United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994), These varying articulations of when the rule of lenity applies are not merely different ways of saying the same thing—the outcome of a particular case often depends on which formulation of the rule the Court employs. See Daniel Ortner, The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus Linguistics, 25 B.U. Pub. Int. L.J. 101,105 (2016).,

We need not decide here which option for either of these issues is best. I point out only that 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.

Although I would not adopt a particular option, it is important to understand that there are sound reasons to adopt a more robust rule of lenity than the rule apparently adopted by the court. For example, courts have long recognized that the rule of lenity ensures that criminal defendants have notice that their 'behavior could subject them to criminal prosecution. See United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 97 L.Ed. 260 (1952) (describing the rationale behind the rule of lenity by saying, “when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite”). Even if defendants do not read 'the statute before they act, the fact remains that if they wanted to do so, they could learn what the law prohibits. See McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct 340, 75 L.Ed. 816 (1931). Furthermore, a robust rule of lenity requires legislators to draft statutes more clearly. Price, supra, at 911-12. This in turn allows voters to hold legislators accountable for the legislation they pass. Id. at 911.

The rule of lenity also prevents judicial usurpation of the legislature’s role. United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (“[Bjecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation' of the community, legislatures and not courts should define criminal activity.”). Separation of powers dictates that only the legislative branch can create new crimes. See State v. Noggle, 881 N.W.2d 545, 547 (Minn. 2016) (“The Minnesota Legislature has the ‘exclusive authority to define crimes and offenses and the range of the sentences or punishments for'their violation.’ ” (quoting Minn. Stat, 609.095(a) (2014))); State v. S.L.H., 755 N.W.2d 271, 278 (Minn. 2008) (“[0]ur separation of powers jurisprudence requires that we give ‘due consideration’ to the ‘equally important executive and legislative functions.’” (citation omitted)). By construing ambiguity in favor of the criminal defendant, we ensure that the courts do not accidentally create crimes that the Legislature never intended.

Applying the rule of lenity as the court does guts it of its power and loses all of these benefits. We have many canons, of *447construction. See, e.g., Ryan Contracting Co. v. O’Neill & Murphy, LLP, 883 N.W.2d 236, 244 (Minn. 2016) (describing last-antecedent canon); Cty. of Dakota v. Cameron, 839 N.W.2d 700, 709 (Minn. 2013) (describing noscitur a sociis canon); Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 74 (Minn. 2012) (explaining that words and phrases with a special meaning are construed according to the special meaning); State v. Zais, 805 N.W.2d 32, 40 n.4 (Minn. 2011) (describing the plural includes the singular); Leathers, 799 N.W.2d at 611 (describing in pari materia); In re Welfare of J.B., 782 N.W.2d 535, 543 (Minn. 2010) (describing expressio unius est exclusio alteris); Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 435 (Minn. 2009) (describing the singular includes the plural); ILHC of Eagan, LLC v. Cty. of Dakota, 693 N.W.2d 412, 419 (Minn. 2005) (describing canon against surplusage); Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn. 2002) (describing the canon against retroactivity); Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d 273, 278 (Minn. 2000) (describing canon against absurd results or unjust consequences); Correll v. Distinctive Dental Servs., P.A., 607 N.W.2d 440, 446 (Minn. 2000) (explaining that the latter enacted of two irreconcilable statutes prevails); id. at 445-46 (explaining that the specific provision prevails over the general provision); In re Linehan, 594 N.W.2d 867, 874 (Minn. 1999) (describing canon of constitutional avoidance)'. In a given case, after analyzing all of these canons, and perhaps other canons not mentioned here, it is unlikely to the point of improbability that any ambiguity will remain. Thus, by applying lenity last, the court essentially decides that lenity never applies. •

In short, our case law has been inconsistent about when the rule of lenity should be applied. I depart from the court’s analysis today because the. court ■ overlooks sound policy reasons to adopt a robust rule of lenity. But ultimately, because I conclude that the statute is unambiguous, the discussion of the rule of lenity is unnecessary and I therefore concur with the court’s result. • .

. The court argues that we can look to the common law only after we determine that a statute is ambiguous. But we have previously considered the common law without first concluding that the statute was ambiguous. See, e.g., Binkley v. Allina Health Sys., 877 N.W.2d 547, 555 (Minn. 2016) (Lillehaug, J., concurring) (stating that the presumption that statutes are consistent with the common law "typically is applied before we determine whether a statute is ambiguous"); Dahlin v. Kroening, 796 N.W.2d 503, 505 (Minn. 2011) (considering the- common law without mentioning whether the statute was ambiguous); State v. Soto, 378 N.W.2d 625, 627 (Minn. 1985) (relying on the common law as an "aid of statutory construction” without concluding that the statute was ambiguous). As to the comment the court .makes that all extrinsic canons can be applied only after concluding that the statute is ambiguous, this broad issue is not before the court today and is therefore dicta. See State ex rel. Foster v. Naftalin, 246 Minn. 181, 74 N.W.2d 249, 266 (1956) (“Dicta ... generally is considered to be expressions in a court’s opinion which go beyond the facts before the court and therefore are the individual views of the author of the opinion and not binding in subsequent cases.”).