Lue Yang, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0745

Lue Yang, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed February 8, 2021
Affirmed
Hooten, Judge

Hennepin County District Court
File No. 27-CR-15-10663

Lue Yang, Brooklyn Center, Minnesota (pro se appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Smith, Tracy M. , Presiding Judge; Hooten , Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this appeal from the district court’s denial of his petition for compensation based
on exoneration under Minn. Stat. § 590.11, subds. 1(b) and (c) (Supp. 2019) , appellant
argues that he is eligible to receive compensation as an exonerated individual under the

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statute. While appellant’s conviction for possession of a firearm was vacated, appellant is
not eligible for compensation as an exonerated person under our recent precedent in
Kingbird v. State , 949 N.W.2d 744 (Minn. App. 2020) , review granted (Minn. Nov. 17,
2020). We affirm.
FACTS
Appellant Lue Yang was pulled over in April 2015 for dri ving a vehicle a police
officer believed to be stolen. The officer discovered a compressed -air-powered BB gun
under the driver’s seat. The state charged Yang with felony possession of a firearm by an
ineligible person under Minn. Stat. § 624.713, subd. 1(2) (2014). After a trial, a jury found
Yang guilty. The district court entered the conviction and sentenced Yang to 60 months in
prison. Yang then appealed.
Prior to our deciding Yang’s appeal, the supreme court released State v. Haywood,
886 N.W.2d 485 (Minn. 2016), in which the defendant, Haywood, appealed his conviction
for possession of a firearm by an ineligible person. In that case, the supreme court
concluded that the plain meaning of the term “firearm” includes only devices that fire a
projectile using explosive force like gunpowder, overruling a previous interpretation of the
term that included a compressed -air-powered BB gun. Id. at 489-490. On that basis, the
court vacated the appellant’s conviction. Id. at 490-91.
In Yang’s appeal from his conviction, we applied the supreme court’s interpretation
of the term “firearm,” concluding that Minn. Stat. § 624.713, subd. 1 (2014) did not
criminalize Yang’s possession of a BB gun. State v. Lue Yang, 887 N.W.2d 40, 43 (Minn.

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App. 2016). We vacated Yang’s conviction because he “did not possess a firearm when
he was arrested on April 20, 2015.” Id.
In 2019, Yang petitioned for compensation based on exoneration under Minn. Stat.
§ 590.11. The district court denied his petition. Yang appeals to this court.
DECISION
Yang contends that he was exonerated of the crime of possession of a firearm by an
ineligible person because we vacated his conviction on the basis that his BB gun was not a
firearm. Yang, 887 N.W.2d at 43. The state conte nds that Yang was not exonerated and
that there is no evidence of his innocence.
An exonerated person may petition for compensation from the state for the time they
were unjustly imprisoned. Minn. Stat. § 590.11 (2018 & Supp. 2019). A person must first
show that they were exonerated. Id., subd s. 2 (Supp. 2019), 3 (2018). A person is
exonerated if a court “vacated, reversed, or set aside a judgment of conviction on grounds
consistent with innocence.” Id., subd. 1(b) . The phrase “on grounds consistent with
innocence” means that “ there is any evidence of factual innocence.” Id., subd. 1(c) (Supp.
2019). The phrase “evidence of factual innocence” means “any evidence that shows some
fact establishing the absence of the petitioner’s guilt.” Freeman v. State, 944 N.W.2d 488,
491 (Minn. App. 2020). Once a person shows they were exonerated on grounds consistent
with innocence, they may petition the district court for an order certifying them as eligible
for compensation. Minn. Stat. § 590.11, subds. 3, 7 (Supp. 2019). We review de novo
whether an appellant has met the statutory definition of “exonerated.” Freeman, 944
N.W.2d at 490.

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The district court concluded that Yang was not exonerated because he was guilty of
possessing a firearm under existing case law in 2015, and his conviction was vacated only
because we later clarified that a BB gun is not a firearm. The district court reasoned that
“[t]he subsequent change in the law does not absolve [Yang] of guilt.” The state agrees
with the district court’s reasoning.
We conclude that, based upon our holding in Kingbird v. State, the district court did
not err by determining that Yang was not exonerated. 949 N.W.2d 744 (Minn. App. 2020),
review granted (Minn. Nov. 17, 2020). Just as in Yang’s case, the appellant in Kingbird
had a BB gun, was convicted of possession of a firearm by an ineligible person, and the
district court vacated his conviction on the basis that a BB gun was not a firearm under
Haywood. Id. at 746. The appellant petitioned for c ompensation on the basis of
exoneration, but the district court denied the petition, concluding that the appellant’s
conviction was not vacated based on grounds consistent with innocence and the appellant
failed to offer any evidence of factual innocence. Id. at 746-47. We agreed, holding that
a defendant is not exonerated under the compensation statute when they “violate the
criminal law under existing precedent” and their conviction was only “vacated based on a
clarification of the law so that the . . . conduct is no longer criminal.” Id. at 750-51.
Under the Kingbird rationale, even though Yang’s conviction was vacated, he was
not factually innocent because his conduct was deemed to be criminal under the case law

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existing at the time he committed the offense. Because Yang was not factually innocent,
he was not eligible to bring a claim under the exoneration compensation statute. 1
Yang finally argues that the supreme court’s decision in Back v State, 902 N.W.2d 23
(Minn. 2017), violated his equal protection rights by preventing him from claiming he was
exonerated under an older definition of that term. See Minn. Stat. § 590.11, subd. 1(1)(i)
(2016) (“‘exonerated’ means that: (1) a court of this stat e: (i) vacated or reversed a
judgment of conviction on grounds consistent with innocence and the prosecutor dismissed
the charges”). The supreme court declared that because it required that a prosecutor
dismiss the charges, the definition was unconstitutional on equal protection grounds. Back,
902 N.W.2d at 30-32. As a remedy, the supreme court excised the entire definition from
the compensation statute. Id. In a dissent, Justice Lillehaug criticized the majority opinion
for overreaching by unnecessari ly excising the entire definition rather than o nly the
unconstitutional phrase requiring the dismissal by a prosecutor , leaving a person whose
conviction was vacated or reversed on grounds consistent with innocence without a remedy
and equal protection und er the compensation statute. Id. at 36 -37. The legislature
responded to these concerns by amending the statute to reinstate the right of compensation
for a person whose conviction was vacated or reversed on grounds consistent with
innocence. 2019 Minn. Laws 1st Spec. Sess. ch. 5, art. 2, §§ 13-16, at 965-67. In doing
so, the legislature defined for the first time the phrase “on grounds consistent with

1 Because we conclude that Yang was not exonerated, we do not address his contention
that the district court improperly considered his other potential bad acts to support its
conclusion that he failed to show his innocence.

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innocence” as “any evidence of factual innocence.” 2019 Minn. Laws 1st Spec. Sess. ch. 5,
art. 2, § 13, at 966 . Yang cites Justice Lillehaug’s dissent to support his claim that the
supreme court erred in excising the entire definition, arguing that the excised definition
was less restrictive than the new definition, and concluding that Back denied him e qual
protection under the statute.
There is no merit to Yang’s equal protection claims. First, the legislature amended
the statute to allow a person to claim compensation when their conviction is vacated or
reversed on grounds consistent with innocence, d irectly solving Justice Lillehaug’s equal
protection concern that Back left that person without a remedy under the compensation
statute. 2019 Minn. Laws 1st Spec. Sess. ch. 5, art. 2, §§ 13-16, at 965 -67; Back, 902
N.W.2d at 36 -37. Therefore, Justice Lil lehaug’s dissent provides no legal support for
Yang’s equal protection claim. Second, Yang cites no legal support for his contention that
the new definition of exonerated is more restrictive than the old definition. The supreme
court in Back specifically declined to analyze whether the appellant’s conviction was
reversed on grounds consistent with innocence; Back provides no baseline to compare the
restrictiveness of the old definition to the new one. Back, 902 N.W.2d at 27 n.1. Third,
Yang has failed t o otherwise articulate and develop the legal and factual support for an
equal protection claim, so we need not consider it further. See State v. Modern Recycling,
Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).
Affirmed.