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This opinion will be unpublished and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
A17-0597

State of Minnesota,
Respondent,

vs.

Brittany Donielle Ellis,
Appellant.

Filed July 31, 2017
Affirmed
Cleary, Chief Judge

Pipestone County District Court
File No. 59-CR-13-368

Lori Swanson, Attorney Genera l, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Scott R. Cutcher, Fifth District Public Defe nder, Virginia M. Barron, Assistant Public
Defender, Westbrook, Minnesota (for appellant)

Considered and decided by Cleary, Chie f Judge; Halbrooks, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
This is an appeal from an order denying appellant Brittany Donielle Ellis’s ex parte
application requesting funds for expert serv ices under Minn. Stat. § 611.21(a) (2016).
2
Although the district court erred by failing to consider appellant’s re quest ex parte, that
error is harmless because the district cour t did not abuse its di scretion in denying her
request for funding. For this reason, we affirm.
FACTS
Appellant was charged with and pleaded gui lty to felony fleeing a peace officer in
a motor vehicle. The district court stayed adjudication and placed her on probation on the
conditions that she abstain from using contro lled substances and al cohol, and that she
submit to random testing. The first probation-violation report was filed on July 14, 2015,
alleging that appellant failed to abstain from using controlled substances based on a urine
test that was positive for cannabinoid.1 Appellant admitted the violation, her probation was
reinstated, and she was ordered to serve ten days in jail as a consequence. A second
probation-violation report was filed on January 13, 2016, alleging that appellant failed to
abstain from using controlled substances based on a December 22, 2015 urine test that was
positive for THC-COOH, a metabolite of marijuana. On January 21, 2016, an addendum
to the probation-violation report was filed based on a January 14 urine test that was positive
for THC-COOH. Premier Biotech conducted the testing of the December and January
samples. Appellant denied the second probation violation and demanded disclosure of the
entire probation file, which the district cour t granted. Appellant filed a supplemental

1 This test was conducted by RSI Laboratories and is not at issue. Marijuana,
tetrahydrocannabinols (THC), and cannabinoids are included in the list of Schedule I
controlled substances. Minn. Stat. § 152.02, subd. 2(h) (2016).
3
demand for disclosure on February 22, 2016, seeking the entire file from Premier Biotech,
along with documents establishing the reliability and accreditation of the lab.
On March 27, 2016, appellant filed an ex parte application for expert services under
section 611.21(a), requesting $250, the fee that Premier Biotech charged to produce
documents for her counsel’s inspection. On Ap ril 1, 2016, the district court granted the
request for services and made the order public.2
On September 2, 2016, appellant filed a motion (1) to exclude the urine test results
from Premier Biotech because the lab is not accredited and refuses to disclose records
demonstrating that its results are scientifically valid and re liable, and (2) to dismiss the
probation violation. In a December 20, 2016 order, the district cour t denied appellant’s
motion.3
On January 21, 2017, appellant filed a second ex parte application requesting funds
for expert services. The second application is the subject of this appeal. The district court
disclosed the application to th e county attorney. Over appellant’s objection, the district
court permitted the county attorney to participate in a March 7, 2017 hearing on appellant’s
application, at which the county attorney opposed appellant’s request for funds for expert
services. In a March 24, 2017 order, the district court denied appellant’s request for funds.

2 The county attorney filed a motion to rescind the order but withdrew it after the funds
were distributed.
3 The district court gave the following reasons for denying the motion: the rules of evidence
do not apply to probation violation hearings; the lab is a private company and may not be
subject to the same accreditation requirement s as a Bureau of Criminal Apprehension
(BCA) laboratory; and the lack of accreditation goes to the weight of the evidence and not
its admissibility.
4
This appeal is taken from the March 24 order and was assigned to the special term panel.
See Minn. Stat. § 611.21(c) (2016) (authorizing defendant to a ppeal immediately to the
court of appeals from “an order denying counsel the authority to obtain services” and to
request an expedited hearing).
D E C I S I O N
I. A Request for Expert Services Must Be Considered Ex Parte.

Appellant first argues that the district court should not have disclosed her
application for funds for expe rt services to the county a ttorney and should not have
permitted the county attorn ey to participate in th e hearing. The state 4 concedes that the
district court erred by allowing the county attorney to participate in the proceedings.
The question of whether the district court erred in disclosing appellant’s application
for funds for expert services to the county attorney requires this court to interpret Minn.
Stat. § 611.21(a). This statute authorizes an indigent defendant’s counsel to apply to the
district court for funds for “investigative, expert, or other services necessary to an adequate
defense in the case.” Minn. Stat. § 611.21(a). Statutory interpretation is a question of law,
which this court reviews de novo. State v. Barrientos, 837 N.W.2d 294, 298 (Minn. 2013).
“When the text of the law is unambiguous, we apply the plain meaning of the statutory
language without engaging in any further construction.” Id.; see also Minn. Stat. § 645.16
(2016).

4 The state is represented by the attorney general in this appeal.
5
Section 611.21(a) plainly states that an a pplication for services other than counsel
is to be handled by “an ex parte application.” “In discerning the plain and ordinary meaning
of a word or phrase . . . we consider the common dictionary definition of the word or
phrase.” State v. Brown , 792 N.W.2d 815, 822 (Minn. 201 1). “Ex parte” is defined as:
“Done or made at the instance and for the benefit of one party only, and without notice to,
or argument by, anyone having an adverse interest; of, relating to, or involving court action
taken or received by one party without notic e to the other.” Black’s Law Dictionary , at
697 (10th ed. 2014). Based on the plain langua ge of section 611.21(a), the district court
erred by allowing the county attorney to participate in the hearing on appellant’s
application for funds for expert services.5
Appellant contends that the proper remedy is to reverse the district court’s order
denying services, because the district cour t was “greatly influe nced” by the county
attorney’s involvement in the proceedings. We understand appellant’s request for reversal
to mean that the district court must grant her request for funds. The state argues that, if
this court affirms, “there is no need to cons ider further remedy.” A lternatively, the state
argues that the appropriate remedy is a remand w ith directions for “the district court to
conduct further proceedings on the application . . . without prior involvement of the county
attorney.”

5 Because the language in the statute is cl ear and unambiguous, it is not necessary to
consider the cases from other jurisdictions that appellant relies on in her brief.
6
Although the district court erred by failing to conduct the proceedings ex parte, that
does not automatically mean that appellant is entitled to expert services. See State v. Finch,
865 N.W.2d 696, 703 (Minn. 2015) (applying harmless-error standard to district court’s
failure to follow proper procedure for disqualification motion). A defendant is not entitled
to services unless the district court finds “t hat the services are ne cessary and that the
defendant is financially unable to obtain them.” Minn. Stat. § 611.21(a). As we conclude
below, the district court did not abuse its discretion in denying appellant’s request for funds
for expert services as unnecessary. The error in conducting the proceedings in the presence
of the county attorney was, therefore, harmless, and appellant is not entitled to any relief.
II. The District Court Did Not Abuse It s Discretion by Denying Appellant’s
Application for Funds for Expert Se rvices that Were Unnecessary to
Defend Against a Probation Violation.

Appellant requested funds under section 611 .21 to obtain expert services for a
probation-revocation hearing. The district court denied the motion on the grounds that
expert services were not necessary because the district court judge could determine the
validity of the test results based on the lab technician’s testimony and cross-examination
by defense counsel. The district court also determined that the request was “unnecessarily
broad in scope.” This cour t reviews an order denying se ction 611.21 funds for expert
services under an abuse-of-discretion standard. In re Application of Wilson, 509 N.W.2d
568, 570 (Minn. App. 1993). For the followi ng reasons, appellant has not demonstrated
that the district court abused its discretion.
7
Appellant argues that an expert is ne cessary because Premier Biotech is not
accredited. See Minn. Stat. § 299C.157, subd. 2(b) (2016) (requiring that laboratories
conducting “forensic analysis in the disciplines of toxicology, identification of controlled
substances, or trace evidence” be accredite d by an accrediting body that requires
conformance to forensic-specific requirement s, or have begun the formal process of
seeking accreditation and follow the standards necessary for accreditation); see also Minn.
DOC Policy 205.231 (requiring that confir mation drug testing of offenders in the
community be conducted “[b]y certified and/ or accredited labs using GC/MS and/or
LC/MS/MS technology”). It is not clear th at the accreditation requirements in section
299C.157, subdivision 2(b), apply to probation-revocation proceedings. The urine test in
this case is not being used as evidence in a criminal prosecution to prove that appellant was
impaired by, or that she possessed, a controlled substance. The test is being offered to show
by clear and convincing evidence that appella nt violated a probation condition requiring
that she abstain from using controlled substances. See Minn. R. Crim. P. 27.04, subd.
2(1)(c)b; Gassler v. State, 787 N.W.2d 575, 583 (Minn. 2010) (stating burden of proof for
clear-and-convincing-evidence standard is lower than burden of proof for beyond-a-
reasonable-doubt standard and requires only th at the alleged facts be “highly probable”).
Moreover, the record indicates that Premier Biotech is accredited by the College of
American Pathologists (CAP ), and that it uses tandem-ma ss-spectrometry (LC-MS-MS)
technology. See https://premierbiotech.com/innovation/lab-services/accreditations/ (last
visited July 13, 2017).
8
Even assuming appellant is correct that Premier Biotech lacks the accreditation
required by the legislature and the DOC, that does not mean that appellant can challenge
the lab’s test results in a probation-revocation proceeding.
Foundational reliability for expert opinion testimony is required by Minn. R. Evid.
702. See State v. Hull , 788 N.W.2d 91, 103 (Minn. 2010) (discussing second prong of
Frye-Mack where admissibility of te st result depends on whet her lab conducting test
complied with appropriate standards and controls). Foundational reliability for a particular
test is a prerequisite to its admissi bility in a criminal prosecution. See State v. Jobe, 486
N.W.2d 407, 419 (Minn. 1992). But this is a probation-revocation proceeding and not a
criminal prosecution. The rule s of evidence expressly state that they do not apply to
probation-revocation hearings. Minn. R. Evid. 1101(b)(3); State v. Willis , ___ N.W.2d
___, ___, 2017 WL 2961122, at *5 (Minn. July 12, 2017) (stating “the Rules of Evidence
apply to all cases and proceedings unless the rules provide otherwis e”). Appellant does
not provide any other authority to support her argument that the foundational reliability
required for scientific evidence to be admitted in a criminal prosecution is a prerequisite to
admissibility in probation-revocation proceedings.
Appellant relies on Roberts v. State to support her argument that a defendant can
obtain expert services in a probation-revocation proceeding. 856 N.W.2d 287 (Minn. App.
2014), review denied (Minn. Jan. 28, 2015). But that case is inapposite. Roberts involved
a postconviction challenge to a conviction based on newly discovered evidence that the
testing procedures used by the St. Paul Police Department Crime Laboratory were flawed.
9
Id. at 289. Roberts was not challenging the relia bility of testing procedures used to show
that he violated probation. And the refere nce to requesting funds pursuant to section
611.21 is taken out of context. This court was explaining that Roberts could have sought
funds for expert services at public expense to challenge the reliability of the test results at
the time that he was facing criminal char ges for possessing a controlled substance. Id. at
291. Roberts did not hold that a defendant can seek funds under the statute to challenge
the reliability of test results after the criminal prosecution has concluded. See id.
Finally, appellant’s arguments assume that the due process requirements for
probation-revocation proceedings are the same as those in a trial on a criminal charge. The
state must provide an indigent defendant with expert services necessary to assist in
“evaluation, preparation, and presentation of the defense” at trial and sentencing. See Ake
v. Oklahoma , 470 U.S. 68, 83-84, 105 S. Ct. 108 7, 1096-97 (1985) (holding indigent
defendant has constitutional right to psychiatric assistance at state expense to prepare
effective defense where the defendant’s mental condition is relevant to criminal culpability
and punishment); see also McWilliams v. Dunn , 582 U.S. ___, 137 S. Ct. 1790 (2017)
(concluding defendant was entitled to access to psychiatrist at state expense to assist in
evaluating, preparing, and pres enting defense in capital sent encing). But probation- and
parole-revocation proceedings are “not part of a criminal prosecution” and the “full
panoply of rights” do not apply because parole arises after the end of a criminal prosecution
and sentencing. Morrissey v. Brewer , 408 U.S. 471, 480, 92 S. Ct. 2593, 2600 (1972);
10
Gagnon v. Scarpelli , 411 U.S. 778, 93 S. Ct. 1756 (1973) (extending Morrissey to
probation-revocation proceedings).6
Appellant has not shown that the district court abused its discretion in denying her
motion for funds for expert services under section 611.21. She is not entitled to any relief,
despite the fact that the district court erred in refusing to consider her application for funds
ex parte.
Affirmed.

6 We note that the federal statute providing fo r expert services “ne cessary for adequate
representation,” 18 U.S.C. § 3006A(e) (2012), is broader than Minn . Stat. § 611.21.
“Representation” in the federal statute expressly includes counsel, as well as “investigative,
expert, and other services,” and the proceedings in which representation shall be provided
includes probation viol ations. 18 U.S.C. § 3006A(a)(1)(C) (2012). Minnesota Statutes
provide for appointment of counsel in prob ation-revocation proceedings. Minn. Stat.
§ 611.14(3) (2016) (citing Minn. Stat. § 6 09.14, subd. 2 (2016)). But Minn. Stat.
§ 611.21(a), which provides for “investigative, expert, or other services necessary to an
adequate defense in the case,” does not incl ude all matters in which representation is
required. We also note that, in unpublis hed decisions, this court has relied on State v.
Griffie, 281 Minn. 569, 571, 161 N.W.2d 551, 552 (1968), to conclude that the statute only
applies to pretrial services necessary to prepare a defense to the criminal charge.