State of Minnesota v. Kenneth Gale Lanham

STATE OF MINNESOTA
IN COURT OF APPEALS
A25-0516

State of Minnesota,
Respondent,

vs.

Kenneth Gale Lanham,
Appellant.

Filed March 9, 2026
Reversed and remanded
Larson, Judge

Itasca County District Court
File No. 31-CR-21-2716

Keith Ellison, Attorney General, Lydia Villalva Lijó, Assistant Attorney General, St. Paul,
Minnesota; and

Jacob Fauchald, Itasca County Attorney, Grand Rapids, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ede, Presiding Judge; Larson, Judge; and Halbrooks,

Judge. ∗

SYLLABUS

Under the first-degree criminal-damage-to-property statute, Minn. Stat. § 609.595,

subd. 1 (2020), when a defendant is prosecuted under clause (4), the value of any property

∗
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
damaged by the defendant within any six-month period may be aggregated if the alleged

reduction in the value of the property for each offense is more than $1,000.

OPINION

LARSON, Judge

In this appeal from final judgment, we must decide whether the district court

erroneously granted the state’s motion to aggregate appellant Kenneth Gale Lanham’s two

criminal-damage-to-property charges under section 609.595, subdivision 1(4). To reach

our decision, we must interpret the aggregation provision in section 609.595, subdivision 1,

which provides, in relevant part, that in a “prosecution under clause (4), the value of any

property damaged by the defendant in violation of that clause within any six-month period

may be aggregated” (the aggregation provision). We conclude that, under the statute’s

plain language, when a defendant is prosecuted under clause (4), the value of any property

damaged by the defendant within any six-month period may be aggregated if the alleged

reduction in the value of the property for each offense is more than $1,000. Because the

parties agree that respondent State of Minnesota did not allege that the value of the property

damaged in each offense was reduced by more than $1,000, we conclude the district court’s

decision to grant the state’s motion to aggregate was erroneous and prejudiced Lanham.

Therefore, we reverse and remand.

FACTS

The state charged Lanham—by separate complaints—with two counts of first-

degree criminal damage to property under section 609.595, subdivision 1(4). In the first

complaint, the state alleged that on July 9, 2021, Lanham was incarcerated at the Itasca

2
County jail when he struck a cell-door window with his head, causing it to crack (the July

offense). In the second complaint, the state alleged that on October 15, 2021, Lanham was

incarcerated at the Itasca County jail when he struck a second cell-door window with his

head, causing it to crack (the October offense).

The state moved to aggregate the two separately charged offenses under

section 609.595, subdivision 1. In its motion to aggregate, the state alleged the total cost

to replace the window damaged in the July offense was $1,020, and the total cost to replace

the window damaged in the October offense was $1,000. Over Lanham’s objection, the

district court granted the motion, reasoning that it was “within the parameters of the

statute.”

Before trial, Lanham moved to sever the aggregated charge into two offenses, and

the district court denied the motion. The case proceeded to a jury trial, and Lanham

represented himself. 1 Lanham was found guilty of the aggregated charge. The district

court sentenced Lanham to a 24-month presumptive prison term, with credit for time

served, and ordered Lanham to pay $2,020 in restitution.

Lanham appeals.

ISSUE

Under the first-degree criminal-damage-to-property statute, Minn. Stat. § 609.595,

subd. 1, when a defendant is prosecuted under clause (4), may the value of the property

damage caused by the defendant, in separately charged offenses, be aggregated where the

1
Prior to trial, Lanham was represented by counsel.

3
alleged reduction in the value of the property in one of the offenses was not more than

$1,000?

ANALYSIS

On direct appeal, Lanham challenges the district court’s decision to grant the state’s

motion to aggregate the July offense and October offense. 2 To resolve this question, we

must interpret section 609.595, subdivision 1. Statutory interpretation is a question of law

that we review de novo. State v. Holl, 966 N.W.2d 803, 808 (Minn. 2021). Our goal when

interpreting a statute “is to effectuate the intent of the Legislature.” State v. Velisek, 986

N.W.2d 696, 699 (Minn. 2023) (quotation omitted). We must first determine if the statute

is ambiguous. State v. Mikell, 960 N.W.2d 230, 238 (Minn. 2021). A statute is ambiguous

if its language “is subject to more than one reasonable interpretation[.]” Holl, 966 N.W.2d

2
The state asserts that Lanham forfeited this challenge on appeal because he did not raise
a statutory interpretation argument in district court. We are not persuaded. Upon review
of the record, we conclude that Lanham preserved the issue for appeal when he opposed
the state’s aggregation motion on the basis that the alleged reduction in the value of the
property damaged in the October offense was not more than $1,000. Parties are allowed
to refine their arguments on appeal. See State v. Woolridge Carter, 9 N.W.3d 839, 842 n.3
(Minn. 2024) (explaining that “the forfeiture doctrine does not apply” when a party “has
simply refined [their] arguments” on appeal). Further, even if the statutory interpretation
argument had been forfeited, we can still consider an argument raised for the first time on
appeal “when the interests of justice require consideration of such issues and doing so
would not unfairly surprise a party to the appeal.” See Roby v. State, 547 N.W.2d 354, 357
(Minn. 1996); see also Minn. R. Crim. P. 28.02, subd. 11 (“On appeal from a judgment,
the court may review . . . any other matter, as the interests of justice may require.”); Minn.
R. Civ. App. P. 103.04 (stating that appellate courts “may review any other matter as the
interest of justice may require”). Because Lanham objected when the state filed the motion
to aggregate and then filed a motion to sever the offenses before trial, we do not discern
that the state was unfairly surprised that this issue was raised on direct appeal.

4
at 808 (quotation omitted). If the statute is unambiguous, we must apply the plain

language. Id.

Section 609.595, subdivision 1, provides, in relevant part:

Whoever intentionally causes damage to physical
property of another without the latter’s consent may be
sentenced to imprisonment for not more than five years or to
payment of a fine of not more than $10,000, or both, if:
....
(4) the damage reduces the value of the property by
more than $1,000 measured by the cost of repair and
replacement; or
....

In any prosecution under clause (4), the value of any
property damaged by the defendant in violation of that clause
within any six-month period may be aggregated and the
defendant charged accordingly in applying the provisions of
this section[.]

(Emphasis added.) Here, both parties assert that the statute is unambiguous, but they offer

conflicting interpretations.

Relying on the phrase “in violation of that clause,” Lanham argues that the value of

property damaged in separate offenses may be aggregated only if the alleged reduction in

the value of the property damaged for each offense meets the requirements of clause (4)—

namely, each offense “reduces the value of the property by more than $1,000 measured by

the cost of repair and replacement.” See Minn. Stat. § 609.595, subd. 1. Lanham reasons

that this interpretation is consistent with the use of “that” as a pointing word, referring the

reader back to the earlier specific reference to “any prosecution under clause (4).” Thus,

Lanham asserts, to aggregate the value of property damaged, each offense must allege a

5
reduction in the value of property “in violation of” clause (4), meaning the alleged “cost of

repair or replacement” is more than $1,000 for each offense. 3

We conclude that Lanham provides a reasonable interpretation of the aggregation

provision. The phrase “that clause” plainly refers to the opening phrase “[i]n any

prosecution under clause (4),” and, therefore, it is reasonable to interpret the statute to mean

“the value of any property damaged by the defendant in violation of [clause (4)] within any

six-month period may be aggregated.”

The state offers two competing interpretations of the aggregation provision. First,

the state argues the statute allows aggregation of any property damaged within a six-month

period to reach the value threshold in section 609.595, subdivision 1(4). To support its

interpretation, the state relies solely on the supreme court’s decision in State v. Powers.

962 N.W.2d 853 (Minn. 2021). There, the supreme court explained that the “degrees of

culpability within the [criminal-damage-to-property] statute are demarcated principally by

the extent of the damage caused[,]” and “[t]he only logical reading of the statute’s plain

language and structure is to focus the assessment of the degree of culpability on the

defendant’s actions, not on the action or inaction of the victim.” Id. at 859-60. According

3
Lanham also contends this interpretation is consistent with the language of the statute
when read “as a whole.” See Mikell, 960 N.W.2d at 239 (stating that we must “read words
and phrases in the context of the statute as a whole” when interpreting the meaning of a
statute). Specifically, Lanham asserts that the subdivisions defining second- and third-
degree criminal damage to property contain their own aggregation provisions, supporting
his contention that aggregation is possible only amongst offenses that violate the same
statutory-degree of offense. See Minn. Stat. § 609.595, subds. 1a-2 (2020). This argument
further bolsters the reasonableness of Lanham’s proposed interpretation.

6
to the state, allowing aggregation of any property damage occurring in a six-month period

to reach the value threshold achieves the legislative goal articulated in Powers.

We are not persuaded that this is a reasonable interpretation of the aggregation

provision for two reasons. First, the state does not base its argument on the language in

the statute itself. Second, Powers did not interpret the statutory language at issue here.

Instead, the supreme court interpreted the language “damage reduces the value of the

property . . . measured by the cost of repair and replacement” in section 609.595,

subdivision 1(4), and concluded the state may rely on reasonable cost estimates to assess a

reduction in the value of the property. Id. Therefore, we do not agree that Powers provides

support for the state’s proposed interpretation of the aggregation provision.

The state’s second proposed interpretation is that, once a defendant is charged with

one offense that alleges a reduction in the value of the property by more than $1,000, the

state can aggregate the value of any property damaged in subsequent offenses within a six-

month period, even if a subsequent offense does not allege a reduction in property value of

more than $1,000. For this argument, the state relies on the phrase “any property damaged

by the defendant . . . within any six-month period.” See Minn. Stat. § 609.595, subd. 1

(emphasis added).

Again, we are not persuaded. The omitted language “in violation of that clause” is

the qualifying language in the statute. See id. (emphasis added). And when interpreting a

statute, we give effect to each word in the statute. See State v. Thompson, 950 N.W.2d 65,

69 (Minn. 2020) (stating that the canon against surplusage “favors avoiding interpretations

[of a statute] that would render a word or phrase superfluous, void, or insignificant, thereby

7
ensuring each word in a statute is given effect”). The state does not offer an interpretation

of the qualifying language that would allow for the aggregation of the value of property

damaged that is not “in violation of” clause (4). Accordingly, we conclude that this is not

a reasonable interpretation of the statute’s plain language.

For these reasons, we conclude the statute is unambiguous because the only

reasonable interpretation of the aggregation provision is that, in a prosecution under

clause (4), the value of any property damaged by the defendant within any six-month

period may be aggregated if the alleged reduction in the value of property for each offense

is “in violation of” clause (4)—meaning each offense alleges a reduction in the value of

the property by “more than $1,000 measured by the cost of repair and replacement.” Here,

the parties agree that, at the time the district court granted the motion to aggregate, only

the July offense alleged a reduction in the value of the property by more than $1,000 as

“measured by the cost of repair or replacement.” Therefore, because the unambiguous

statute does not allow the value of the property damaged in the July offense and October

offense to be aggregated, we conclude the district court erred when it granted the state’s

motion to aggregate.

The state finally argues that, even if the district court legally erred when it granted

the state’s motion to aggregate, we should affirm the conviction because Lanham failed to

demonstrate prejudice. See State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997) (“Reversal

is warranted only when the error substantially influences the jury’s decision.”); Minn. R.

Crim. P. 31.01 (“Any error that does not affect substantial rights must be disregarded.”).

Lanham disagrees, arguing that the district court’s decision to grant the state’s motion to

8
aggregate prejudiced him because it removed the state’s burden to prove the value-of-

property-damage element for the October offense. 4

We conclude the district court’s decision to grant the state’s motion to aggregate

prejudiced Lanham. The state bears the burden to prove all elements of an offense beyond

a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970) (stating that the Due Process

Clause of the Fourteenth Amendment requires the state prove “beyond a reasonable doubt

. . . every fact necessary to constitute the crime with which [the accused] is charged”). And

the Minnesota Supreme Court has held that removing the state’s burden to prove an

element of an offense is not harmless. See, e.g., State v. Hall, 722 N.W.2d 472, 479 (Minn.

2006) (“We have consistently held that when an erroneous jury instruction eliminates a

required element of the crime this type of error is not harmless beyond a reasonable

doubt.”); State v. Kuhnau, 622 N.W.2d 552, 558-59 (Minn. 2001) (concluding an error is

not harmless if it removes the state’s burden to prove an element of the offense). Here, the

aggregation of the July offense and October offense allowed the state to prosecute the

October offense as a felony under the first-degree criminal-damage-to-property statute

4
Lanham cites State v. Fitch for the proposition that he must prove prejudice but does not
apply the balancing test set forth in that case. See 884 N.W.2d 367, 379 (Minn. 2016)
(“But the ultimate question in a severance claim . . . is one of prejudice. We have
repeatedly and consistently held that joinder is not prejudicial if evidence of each offense
would have been admissible Spreigl evidence in the trial of the other.” (quotations and
citation omitted)). Because the parties do not argue that a test other than harmless error
applies, we assume without deciding that harmless error is the appropriate test.

9
without proving the required damage threshold. 5 We therefore conclude the error

prejudiced Lanham and requires reversal of his conviction. 6

For the foregoing reasons, we reverse Lanham’s conviction and remand for further

proceedings. 7

DECISION

We conclude that, under section 609.595, subdivision 1, when a defendant is

prosecuted under clause (4), the value of any property damaged by the defendant within

any six-month period may be aggregated if the alleged reduction in the value of the

property for each offense is more than $1,000. For the reasons articulated above, we

5
The state argues the district court’s decision did not prejudice Lanham because the state
could have prosecuted the October offense at a lesser degree. We are not persuaded. Here,
the state charged Lanham only with first-degree criminal damage to property for the
October offense; therefore, Lanham was prejudiced because, the aggregation allowed the
state to prosecute Lanham for a first-degree offense without proving a reduction in the
value of the property of more than $1,000.
6
We further note that we would have reached the same result had we applied the plain-
error standard of review. Under the plain-error test, we analyze whether there was an error,
that was plain, that affected Lanham’s substantial rights. See State v. Beaulieu, 859
N.W.2d 275, 279 (Minn. 2015). If Lanham satisfied these factors, we would consider
whether the error affected the fairness or integrity of judicial proceedings. See id. Here,
the error is plain because it contravened the plain language of an unambiguous statute. See,
e.g., id. at 282 (finding plain error where the district court contravened an unambiguous
rule of criminal procedure). For the reasons set forth above, Lanham would have satisfied
the substantial-rights element because the substantial-rights analysis is “the equivalent of
a harmless error analysis.” See State v. Matthews, 800 N.W.2d 629, 634 (Minn. 2011).
And correcting the error would have been necessary to ensure the fairness and integrity of
the judicial proceedings because requiring the state to prove every element of the crime
beyond a reasonable doubt “is indispensable to command the respect and confidence of the
community in applications of the criminal law.” See State v. Burg, 648 N.W.2d 673, 680
(Minn. 2002) (quotation omitted).
7
Lanham also challenges the district court’s restitution decision, arguing the district court
failed to expressly consider his ability to pay as required under Minn. Stat. § 611A.045,
subd. 1(a) (2020). Because we reverse his conviction, we need not address this issue.

10
reverse Lanham’s conviction on the aggregated charge and remand for further proceedings

consistent with this opinion.

Reversed and remanded.

11