State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A20-1149

State of Minnesota,
Respondent,

vs.

Logan Phillip Kirch,
Appellant.

Filed August 9, 2021
Affirmed in part, reversed in part, and remanded
Ross, Judge

Scott County District Court
File No. 70-CR-19-2370

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Shakopee, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Laura G. Heinrich, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Segal, Chief Judge; Ross, Judge; and Cochran, Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
A 15-year-old girl ran away from home and asked a stranger she met online to drive
her from Minneapolis to Shakopee. The girl fell asleep in the man’s car and woke up to
him digitally penetrating her vaginally. A police detective traced the man’s social-media
account to Logan Kirch and showed the girl a photograph of Kirch’s face. She identified
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Kirch from the photograph as the man who sexually assaulted her. Kirch contends on
appeal that his consequent conviction of third-degree criminal sexual conduct resulted from
an unconstitutionally suggestive identification procedure and that the district court at
sentencing erroneously included a lifetime conditional-release term to follow his
incarceration. Although the single- photograph identification procedure was highly
suggestive, we hold that the district court did not abuse its discretion by admitting the
identification into evidence because the circumstances made the identification
independently reliable. We therefore affirm in part. But we reverse in part and remand for
resentencing because the lifetime conditional-release term exceeds the sentence authorized
by statute.
FACTS
A 15-year-old girl ran away from home in July 2018. She c ontacted men on the
social-media platform, S napchat. One man, whom the girl referred to as “Logan,”
exchanged about 60 messages with the girl, many sexually graphic. The girl asked Logan
if he would drive her from Minneapolis to Shakopee. He said he would.
A man who identified himself to the girl as the one with whom she had been
conversing online picked her up in his car as they had planned. The girl fell asleep in the
car. She woke up as the man was penetrating her vaginally with his finger.
The man dropped the girl off, and she reported the assault to Shakopee police. She
recounted how she had met the man online and described him as being a white male in his
“early 20s, slightly overweight . . . [with] blond hair and blue/green eyes.” A police
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detective investigated and obtained the IP address of the man’s Snapchat account. The
detective traced the IP address to a Shakopee home. Logan Kirch resided there.
The detective met with the girl three months after the assault. He showed her
printouts of chat logs from the sexually explicit online discussion between her and the man
and asked if she recognized the messages. She did. He then presented her with a photograph
of Kirch’s face, saying, “[H]e may or may not be the one that was involved.” The girl
“instantaneous[ly]” identified Kirch as the man who picked her up and sexually assaulted
her in the car.
The district court held a stipulated-facts bench trial under Minnesota Rule of
Criminal Procedure 26.01, subdivision 3, after denying Kirch’s pretrial motion to suppress
and admitting evidence that the girl had identified Kirch by the photograph. The district
court determined that the identification procedure was not unnecessarily suggestive. It also
found that the girl had seen Kirch clearly during the incident, had provided an accurate
description before seeing the photograph, and had recognized Kirch’s phot ograph with
certainty. It therefore concluded that her identification was reliable, independent of any
undue suggestiveness from being shown an image of only one man.
The district court found Kirch guilty of third -degree criminal sexual conduct. At
sentencing, the district court also considered a prior offense; in 2017 the district court had
adjudicated Kirch delinquent as a juvenile for second-degree criminal sexual conduct
because he rubbed his ten-year -old sister’s genitalia as she slept. See State v. L.P.K.,
No. A20-1155, 2021 WL 1245013 (Minn. App. April 5, 2021). In that prior case, the
district court placed Kirch on extended jurisdiction juvenile probation status. See Minn.
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Stat. § 260B.130, subd. 5 (2020 ). Based on that circumstance and the current conviction,
the district court revoked Kirch’s EJJ status, executed his previously stayed adult sentence
for the 2017 conviction, and imposed a ten-year conditional-release term for that offense.
The district court then sentenced Kirch for the conviction now on appeal, imposing a
39-month prison term to be followed by lifetime conditional release. In a separate appeal,
we have already affirmed the district court’s decision to revoke Kirch’s EJJ probation.
See L.P.K., 2021 WL 1245013. Kirch now appeals his current conviction and the
conditional-release component of the sentence.
DECISION
I
Kirch challenges his conviction on the theory that the district court improperly
admitted evidence that the girl identified him by photograph. The Fourteenth Amendment’s
Due Process Clause bears on whether the on-scene and in-court identifications are
admissible. We review de novo whether a due-process violation occurred, including one
that results from improperly admitted evidence. State v. Hill, 871 N.W.2d 900, 905 (Minn.
2015). Three issues ordinarily determine whether the state can properly introduce
identification evidence: (1) whether the police were involved in arranging the procedure,
(2) whether the identification process was highly suggestive and therefore tending to be
unreliable, and if so, (3) whether the suggestive procedure was necessary under the
circumstances. See Perry v. New Hampshire, 565 U.S. 228, 238–39, 132 S. Ct. 716, 724
(2012) (synthesizing the analyses of Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972),
and Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977)). Generally speaking, the
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state may not introduce evidence of an out-of -court identification or elicit a subsequent
in-court identification from the same witness if the out-of-court identification process was
“so unnecessarily suggestive and conducive to irreparable mistaken identification that he
was denied due process of law.” Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972
(1967), abrogated on other grounds by United States v. Johnson, 457 U.S. 537, 102 S. Ct.
2579 (1982). We therefore first address the suggestibility of the detective’s identification
procedure.
Kirch convincingly argues that the detective employed an unnecessarily suggestive
identification procedure. A long-standing and extensive body of federal and state appellate
caselaw uniformly denounces the practice of police officers’ presenting eyewitnesses with
only a single suspect for identification. See Manson, 432 U.S. at 104, 97 S. Ct. at 2248
(condemning single-photo lineups); Simmons v. United States, 390 U.S. 377, 383–84,
88 S. Ct. 967, 971 (1968) (discouraging use of single photo); State v. Ostrem, 535 N.W.2d
916, 921 (Minn. 1995) (presuming unnecessary suggestiveness of single-photo lineup and
observing that courts “have [] widely condemned” this approach). The detective here
showed the girl only a single photograph. The state offers no reason the detective could not
have located and presented the girl an array of photographs of multiple men who, like
Kirch, fit the girl’s description of her assailant. And we can think of none. With modern
technology, it can take only minutes for police to assemble a feasible photographic lineup,
and in this case police had months. We add that the detective’s tepid qualification that the
man in the photograph “may or may not be” the offender did little to mitigate the suggestive
nature of his presenting only a single image as his identification procedure.
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We are not persuaded otherwise by the state’s contention that “a one-person
show-up is not unnecessarily suggestive per se,” quoting State v. Taylor, 594 N.W.2d 158,
161–62 (Minn. 1999). The Taylor court held that a one-person identification procedure was
not unnecessarily suggestive in part because the victim knew the offender from at least ten
prior encounters and could therefore easily recognize him. Id. at 162. In sharp contrast here,
the victim had never seen Kirch before he picked her up in his car. Her only knowledge of
his face came from his sole, criminal encounter with her. We do not read Taylor to endorse
the single-photo presentation here. We conclude that the detective employed an
unnecessarily suggestive identification procedure.
If the question of unnecessary suggestibility were the only one, we would reverse
the district court’s decision to admit the evidence and consider whether to reverse the
conviction and order a new trial. But an identification resulting from an unnecessarily
suggestive procedure may nevertheless be admitted into evidence if, under the totality of
the circumstances, the witness’s identification has an “adequate independent origin.”
Ostrem, 535 N.W.2d at 921. We conclude that the girl’s identification was reliabl e
independent of the procedure’s suggestiveness. We do so based on this nonexclusive list
of factors: (1) the girl’s opportunity to view Kirch; (2) her degree of attention; (3) the
accuracy of her prior description; (4) her degree of certainty when identifying Kirch; and
(5) the time between the crime and the identification. See id. Most of these factors justify
admitting the identification.
Regarding the girl’s opportunity to view Kirch and the degree of her attention on
Kirch, the district court found that she clearly saw him while she sat in his car. The
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circumstances support the finding, as she necessarily saw him before and after she entered
the car and after she awoke to the assault. We are not swayed by Kirch’s conjecture that
the girl’s use of marijuana prevented her from clearly seeing Kirch. She saw him well
enough to describe him to police. We also are not dissuaded by the lack of the girl’s express
testimony that she saw her assailant’s face, because the district court necessarily inferred
from her providing the detailed description that she had the opportunity to see and did see
Kirch’s face clearly. The first two factors weigh in favor of admissibility.
Regarding the accuracy of the girl’s description, Kirch contends that she imprecisely
described him as blond and overweight. But the girl provided a largely accurate prior
description of Kirch as a slightly overweight man in his 20s, with blue/green eyes and blond
hair. Although she described his hair as blond in July 2018 and the record includes a
photograph of him with dark hair, the record does not foreclose the reasonable plausibility
that he changed the color of his hair between the assault and the photograph. And Kirch’s
assertion that he was not overweight at the time of the incident has no support in the record.
The third factor favors admissibility.
Regarding the girl’s degree of certainty when she identified Kirch, the state failed
to elicit any testimony from either the detective or the girl about how confident she was in
the identification. But the testimony showed the district court that the identification was
instant and unwavering. This tends to support the district court’s belief that the girl was
certain.
Regarding the time between the girl’s observation of the man and her identification
of Kirch’s photograph, three months passed between the assault and the identification.
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Although this period is not so long as to call the reliability of the photographic
identification into question, it is not so brief as to establish the identification as reliable
independent of the suggestiveness in the detective’s procedure.
It is not overwhelmingly so, but our review of the factors in light of the record
supports the district court’s conclusion that, on balance, the girl’s identification was
independently reliable. It was therefore admissible despite our conclusion that the
detective’s procedure was unnecessarily suggestive.
II
Kirch correctly contends that the district court erroneously imposed a lifetime
conditional-release term. We review de novo whether a sentence is authorized by law. State
v. Williams, 771 N.W.2d 514, 520 (Minn. 2009). The issue here is not whether the district
court should have imposed a term of conditional release but whether the length of the term
is lawful. The district court must impose a conditional- release period when sentencing a
defendant convicted of third-degree criminal sexual conduct. Minn. Stat. § 609.3455,
subds. 6, 7 (2020). The district court must impose a ten-year conditional-release term if the
defendant has no “previous or prior” criminal-sexual-conduct conviction and a lifetime
term if he does. Id. Kirch would have such a “previous” conviction if the district court
convicted and sentenced him for one before he committed the present offense. Id.,
subd. 1(f) (2020). And he would have a “prior” conviction if the district court convicted
him of committing a sex offense before his conviction of the current offense (regardless of
whether the district court convicted him for the first offense before his commission of the
present offense), and the convictions related to separate behavioral incidents. Id., subd. 1(g)
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(2020). A conviction includes a guilty plea. Minn. Stat. § 609.02, subd. 5(1) (2020). But
Kirch was adjudicated delinquent as an EJJ with a stayed adult sentence, and an EJJ
adjudication is a conviction only if the sentence has been executed. Minn. Stat. § 609.3455,
subd. 1(b) (2020). We resolve this issue therefore based on whether Kirch’s EJJ
adjudication resulted in an executed sentence before his conviction in this case.
It did not. The district court adjudicated Kirch delinquent for second-degree
criminal sexual conduct in 2017, but it did not execute his sentence until June 2020. The
district court also convicted Kirch of third -degree criminal sexual conduct in December
2019 and did not impose a sentence until June 2020. See Minn. Stat. § 609.02, subd. 5(2).
Kirch therefore had neither a “previous” nor “prior” sex-offense conviction before his
conviction in this case. The district court therefore improperly imposed the lifetime
conditional-release term for the conviction. And that part of Kirch’s sentence is
unauthorized by law. State v. Cook, 617 N.W.2d 417, 419 (Minn. App. 2000). We vacate
the sentence and remand the case for the district court to impose a ten-year
conditional-release term.
The state points out that one of Kirch’s sentences should include a lifetime of
conditional release and the other a ten-year period of the same, and so it asks that our
remand instructions also direct the district court to modify Kirch’s original ten-year
conditional-release period to lifetime conditional release. But as the state conceded at oral
argument, the companion case in which Kir ch received a ten-year conditional-release
sentence is not before us in this appeal. Because we lack jurisdiction over that case, we
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leave to the parties and the district court how to effectuate the mandated lifetime
conditional release.
Affirmed in part, reversed in part, and remanded.