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Semicolons rule in privacy-interference case.

Byline: Barbara L. Jones

Watch out for semicolons. They can upend construction of a statute by separating an adverb or adjective from a word that otherwise might be modified and change the grammatical construction of a law. That happened to Fedor Pakhnyuk when his attempt to persuade the Court of Appeals to reverse his conviction for surreptitious interference with privacy failed because the intent element of the crime was separated grammatically from the element of entry into property. Therefore, the court ruled, the state need not prove under Minn. Stat. sec. 609.746, subd. 1(a) that a defendant entered anothers property with the intent to intrude upon the privacy of a member of the others household. (See sidebar for full text of statute). The case is State v. Pakhnyuk, written by Judge Diane Bratvold. Judge Matthew Johnson dissented. Window peeping Pakhnyuk was staying at his brothers home and was discovered sitting on the roof of the garage staring into a bedroom window where a juvenile female was undressing. It followed two incidents where the 3-year-old man touched the girl in private parts of the body. He was convicted of interference with privacy, providing alcohol to a minor and disorderly conduct. He appealed the privacy conviction. The court first determined that it could address a question of statutory interpretation raised for the first time on appeal in order to consider his claim that there was insufficient evidence of his violation of the privacy statute. Separating semicolons The court considered three different rules of grammar to determine whether the word intent in paragraph 3 could modify the word enter in paragraph 1 and determined that the rules could not apply smoothly because semicolons separated each element. Therefore the court determined that the intent element is subject to multiple reasonable interpretations, and is therefore ambiguous. It turned to the former version of 609.746, where the same elements flowed as a single sentence. Responding to the dissent (see below), it said Because the goal of statutory interpretation is to give effect to legislative intent and the former law assists our understanding of legislative intent for the current statute, we are confident that it is appropriate to consider the former law in construing subdivision 1(a). It then determined that with intent to followed the gazing elements in paragraph 2 because that was the nearest referent to the intent requirement. Subsequent minor alterations in the statute evinced to intent to alter the meaning of the former law, the court said. Additionally, using the former law to construe subdivision 1 (a) gives effect to the Legislatures intent to protect individual privacy, the count continued. If we were to hold otherwise, subdivision 1(a) would not reach intrusions by those who lacked intent when they entered the property because, for example, they were staying with a relative, hired to perform work, or living in the same apartment complex, Bratvold wrote. Rule of lenity Johnson, dissenting, agreed that the statute is ambiguous but disagreed with the court imputing the meaning of the former statute to the current one, saying that it effectively convicted the defendant for violating a statute no longer in effect. Instead, Johnson reasoned that no canon of statutory construction determined the statutes meaning and it should be construed under the rule of lenity, resolving the ambiguity in favor of the defendant. [divider]   Minnesota Statute sec. 609.746 Interference with privacy Subdivision 1.Surreptitious intrusion; observation device.   (a) A person is guilty of a gross misdemeanor who: (1) enters upon another's property; (2) surreptitiously gazes, stares, or peeps in the window or any other aperture of a house or place of dwelling of another; and (3) does so with intent to intrude upon or interfere with the privacy of a member of the household.

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Publication:Minnesota Lawyer
Date:Jan 15, 2018
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