State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1378

State of Minnesota,
Respondent,

vs.
Denise Ann Kline,
Appellant.

Filed August 21, 2017
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Becker County District Court
File No. 03-CR-15-806

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and

Tammy L. Merkins, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant challenges her conviction of se cond-degree controlled-substance crime,
arguing that the district court abused its discretion by declining to sanction the state
following its discovery violatio n and that her conviction shou ld be reduced from second

2
degree to third degree in accordance with the 2016 Drug Sentencing Reform Act (DSRA).
In the alternative, appellant argues that she is entitled to be resentenced in accordance with
the DSRA. We affirm appellant’s convicti on but reverse her sentence and remand to the
district court for resentencing pursuant to State v. Kirby , __ N.W.2d __ (Minn. July 26,
2017), and State v. Otto, __ N.W.2d __ (Minn. July 26, 2017).
FACTS
In February and March 2015, appellant Denise Ann Kline sold a confidential
informant approximately nine grams of me thamphetamine over the course of three
purchases. During these purchases, the conf idential informant was working with Becker
County Sheriff’s Office Investigators Daniel Skoog and Mark Pino niemi. After each
purchase, the confidential informant gave the methamphetamine to one of the investigators,
who would then bring the drugs back to the sheriff’s office to be labeled, field-tested, and
weighed. Following the final purchase, a th ird member of the Becker County Sheriff’s
Office, Investigator John Peterson, delivered all of the purchased methamphetamine to a
Bureau of Criminal Appreh ension (BCA) laboratory wher e a BCA analyst conducted
forensic testing and confirmed that the substances contained methamphetamine.
In November 2015, respondent State of Mi nnesota charged Kline with one count of
second-degree controlled-substance crime. At trial, the state’s witnesses included the
confidential informant, the BCA analyst, and Investigators Skoog and Pinoniemi. Neither
Investigator Skoog nor Investigator Pinoniem i was able to identif y who had transported
the methamphetamine from the sheriff’s office to the BCA la boratory. The BCA analyst
later testified that her paperwork indicated that Investigator Peterson had delivered the

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methamphetamine to the BCA laboratory. When the BCA analysist was then asked for her
forensic-testing conclusions, Kline raised a foundation objection on the grounds that a
sufficient chain of custody ha d not been established and th e state had failed to produce
updated evidence logs indicating Investigator Peterson’s involvement.
In response to Kline’s found ation objection, the state sought to add Investigator
Peterson to its witness list and to call him to testify. The state characterized Kline’s chain-
of-custody objection and I nvestigator Peterson’s involvement in the case as “a surprise.”
The state acknowledged that updated documentation indica ting Investigator Peterson’s
involvement “probably exists,” but that such records were not in the possession of the
county attorney’s office.
The district court permitted the state to am end its witness list and call Investigator
Peterson to testify, providing the following explanation for its decision:
I don’t think the defense is, in any way, prejudiced by adding
[Investigator Peterson] as a witness at this point in time, due to
his insignificant role in this proceeding, and so I’m going to
allow him to testify. And I will allow the defense time prior to
his testimony to consult with him so you have an idea what he
is going to testify to . . . .

Prior to Investigator Peterson’s testimony, both parties were given an opportunity to speak
with him, and defense counsel informed the di strict court, “I’m satisfied I have what I
need.” After Investigator Peterson testified that he delivered the methamphetamine to the
BCA laboratory, the state recalled the BCA an alyst to continue her testimony and sought
to introduce the methamphetamine. The distri ct court then overru led Kline’s foundation
objection and admitted the methamphetamine into evidence.

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After the jury found Kline guilty of second-degree controlled-substance crime, the
district court sentenced Kline to a presumptive guidelines sentence of 108 months in prison.
Kline appeals.
D E C I S I O N
I. The district court did not abuse its discretion by declining to sanction the state
for its discovery violation.

Kline argues, and the state concedes on app eal, that the state violated the discovery
rules by failing to disclose Investigator Peterson as a potential witness before trial. In light
of this violation, Kline asserts that she is entitled to a new trial because the district court
abused its discretion by declining to sanction the state and, instead, permitting the state to
call Investigator Peterson to testify.
Whether a discovery violation occurred is a question of law, which we review de
novo. State v. Palubicki , 700 N.W.2d 476, 489 (Minn. 200 5). Here, the state concedes
that, “[a]lthough the prosecuto r did not know anything ab out Investigator Peterson’s
involvement [prior to trial], the fact that the prosecutor did not disclose Investigator
Peterson is still a technical viol ation.” We agree. Therefor e, we need only review the
district court’s decision to forgo sanctioning the state for this discovery violation.
We review a district court’s decision to impose discovery-violation sanctions for an
abuse of discretion. Id. When deciding whether to sanction a party for a discovery
violation, a district court should consider: “(1) the reason why disclosure was not made;
(2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that
prejudice by a continuance; and (4) any other relevant factors.” State v. Lindsey , 284

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N.W.2d 368, 373 (Minn. 1979). “Preclusion of evidence is a severe sanction which should
not be lightly invoked.” Id. at 374.
Here, although the district court di d not expressly cite to each of the Lindsey factors,
the record establishes that th e court’s reasoning and decisi on sufficiently accounted for
each factor. First, the district court charac terized Investigator Peterson’s role in the
methamphetamine’s chain of custody as “very minor” in comparison to the involvement of
Investigators Skoog and Pinoniemi and the BCA analyst. Wh ile this minor role does not
excuse the state’s failure to identify and disclose Investigator Peterson’s involvement in a
timely manner, it does provide an explanation for why this disclosure was not made to the
defense before trial. Second, the district court determined that Kline’s defense would not
be prejudiced by the state amending its witn ess list and calling Inve stigator Peterson to
testify. Kline does not argue—and the reco rd provides no indica tion—that her defense
would have derived any benefit from a timely disclosure of Investigator Peterson’s limited
involvement. Third, the dist rict court gave defense counsel the opportunity to interview
Investigator Peterson before he testified. After this interv iew, defense counsel told the
district court, “I’m satisfied I have what I need” and did not request a continuance.
Because we discern no abuse of discretion in the district court’s decision not to
sanction the state for its discovery violation, we conclude that Kline is not entitled to a new
trial.

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II. Kline’s conviction is not affected by the DSRA, but she is entitled to
resentencing in accordance with the DSRA-amended sentencing guidelines.

Kline argues that her conviction should be reduced from second degree to third
degree under the DSRA and that she is entitled to be resentenced under the DSRA because
her conviction was not yet final when the DSRA became effective.1
Kline relies on State v. Coolidge, in which the Minnesota Supreme Court stated that,
under the common-law amelioration doctrine, “a statute mitigating punishment is applied
to acts committed before its effective date, as long as no final judgment has been reached.”
282 N.W.2d 511, 514 (Minn. 1979). But Coolidge does not apply if there is a contrary
statement of intent from the legislature. State v. Edstrom, 326 N.W.2d 10, 10 (Minn. 1982).
The rule from Coolidge and Edstrom is:
An amended statute applies to crimes committed before its
effective date if: (1) there is no statement by the Legislature
that clearly establishes the Legislature’s intent to abrogate the
amelioration doctrine; (2) the amendment mitigates
punishment; and (3) final judgment has not been entered as of
the date the amendment takes effect.

Kirby, 2017 WL 3161079, at *4.
Kline argues that the DSRA section that increases the threshold amount of
controlled substance necessary for a second -degree controlled-substance crime should
apply to reduce her conviction from second degree to third degree. See 2016 Minn. Laws
ch. 160, § 4, at 579-80. The DSRA states that this section is “eff ective August 1, 2016,
and applies to crimes committed on or after that date.” Id. at 581. This language abrogates

1 A conviction is final when direct appeals are exhausted or the time for filing a direct
appeal has expired. State v. Losh, 721 N.W.2d 886, 893-94 (Minn. 2006).

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the amelioration doctrine. Otto, 2017 WL 3161109, at *2. Thus, Kline’s conviction of
second-degree controlled-substance crime stands. See id.
However, the DSRA also changed the pr esumptive sentencing ranges under the
Minnesota Sentencing Guidelines for various categories of crimes. 2016 Minn. Laws ch.
160, § 18(b), at 590-91. The Minnesota Supreme Court’s recently issued opinions in Kirby
and Otto hold that the “amelioration doctrine requires the resentencing of a person whose
conviction was not yet final on the effective date of section 18(b) of the [DSRA]” in
accordance with the amended provision s of the sentencing guidelines. Kirby, 2017 WL
3161079, at *1; see Otto , 2017 WL 3161109, at *3. We therefore reverse appellant’s
sentence and remand to the district court fo r resentencing in accordance with the 2016
amendments to the sentencing guidelines.
Affirmed in part, reversed in part, and remanded.