                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-0199

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Tressa Lee Bissonette,
                                         Appellant.

                                  Filed October 11, 2016
                                         Affirmed
                                      Larkin, Judge

                                Cass County District Court
                                 File No. 11-CR-14-1686


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Christopher J. Strandlie, Cass County Attorney, Jeanine R. Brand, Assistant County
Attorney, Walker, Minnesota (for respondent)

Frank Bibeau, Bibeau Law Office, Deer River, Minnesota (for appellant)



         Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Bratvold,

Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       On appeal from her conviction of gross-misdemeanor child neglect, appellant argues

that the district court erred by denying her motion to dismiss for lack of jurisdiction.

Because Public Law 280 expressly grants the State of Minnesota jurisdiction over the

offense, we affirm.

                                          FACTS

       Respondent State of Minnesota charged appellant Tressa Lee Bissonette with one

count of gross-misdemeanor neglect of a child under Minn. Stat. § 609.378, subd. 1(a)(1)

(2014). According to the complaint, on August 21, 2014 at approximately 10:21 p.m., a

law-enforcement officer found a four- to five-year-old child riding a bicycle unsupervised

on County Road 75, outside of a bar in Cass County.1 The complaint alleged that the

child’s mother, Bissonette, was passed out in the family’s home a quarter mile away. An

officer “had to yell at [Bissonette] to wake her up,” observed that she had slurred speech

and poor balance, and smelled an odor of alcohol on her breath. Bissonette admitted that

she had been drinking all day at a wedding and s         aid that she did not know how long

she had been passed out.

       Bissonette moved to dismiss the child-neglect charge, arguing that the state lacked

jurisdiction over the offense because the child-neglect-and-endangerment statute “is a

civil/regulatory law” and therefore does not fall under the express federal grant of criminal


1
 The parties do not dispute that the conduct at issue occurred on the Leech Lake
Reservation.

                                             2
jurisdiction to Minnesota over enrolled tribal members on reservations under Public Law

280.   The district court denied Bissonette’s motion.           Bissonette stipulated to the

prosecution’s case under Minn. R. Crim. P. 26.01, subd. 4, and the district court found her

guilty of neglect of a child. Bissonette appeals.

                                      DECISION

                                              I.

       “Whether the state has jurisdiction to enforce its laws with respect to an Indian

charged with an offense committed on [her] reservation is an issue that [appellate courts]

review de novo without considering the decisions of the lower courts.” State v. Busse, 644

N.W.2d 79, 82 (Minn. 2002).

       We begin our de novo review with the state’s argument that the factual record does

not support Bissonette’s jurisdictional challenge. The state asserts that Bissonette did not

present evidence establishing that she “is an Indian” or “works in the Leech Lake

Reservation” and argues that “[b]ecause there is no record of [Bissonette] being Native

American, an enrolled member of any tribe, or that Leech Lake is within federal

jurisdiction, nearly all of [Bissonette’s] arguments facially fail.”

       Because the state did not attack the factual basis for Bissonette’s jurisdictional

challenge in district court, the district court did not consider or determine whether the

factual record supported the challenge. An appellate court generally will not decide issues

that were not raised and determined in the district court. Roby v. State, 547 N.W.2d 354,

357 (Minn. 1996). However, an appellate court has discretion to consider issues for the

first time on appeal “when the interests of justice require their consideration and addressing


                                               3
them would not work an unfair surprise on a party.” State v. Sorenson, 441 N.W.2d 455,

457 (Minn. 1989).

       Here, the state opposed Bissonette’s jurisdictional challenge on the merits in district

court, seemingly accepting the factual basis for the challenge.           Bissonette cannot

supplement the factual record on appeal. See State v. Colvin, 645 N.W.2d 449, 453 (Minn.

2002) (“Appellate courts have no . . . business finding facts . . . .”).          Under the

circumstances, allowing the state to attack the factual basis for Bissonette’s jurisdictional

challenge for the first time on appeal would work an unfair surprise on Bissonette. And

because we ultimately conclude that Bissonette’s jurisdictional challenge fails on the

merits, we focus our review on the substantive merits of the challenge.

                                             II.

       “State law does not generally apply to tribal Indians on their reservations absent

express consent from Congress.” Busse, 644 N.W.2d at 82. In Public Law 280, Congress

expressly granted Minnesota “jurisdiction over offenses committed by or against Indians”

on reservations within Minnesota as well as limited jurisdiction “over civil causes of action

between Indians or to which Indians are parties” that arise on reservations within

Minnesota. 18 U.S.C. § 1162(a) (2012) (providing that Minnesota “shall have jurisdiction

over offenses committed by or against Indians” in “[a]ll Indian country within the State,

except the Red Lake Reservation”); 28 U.S.C. § 1360(a) (2012) (providing Minnesota with

limited jurisdiction “over civil causes of action between Indians or to which Indians are

parties” which arise in “Indian Country within the State, except the Red Lake



                                              4
Reservation”); see State v. Jones, 729 N.W.2d 1, 4 (Minn. 2007) (“Minnesota has broad

criminal and limited civil jurisdiction over all ‘Indian country’ within the state, except for

the Red Lake Reservation and the Bois Forte Reservation at Nett Lake.”).

       To ascertain whether a statute is within Public Law 280’s express grant of

jurisdiction, courts must determine whether the statute is “criminal/prohibitory” or

“civil/regulatory.” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209-10,

107 S. Ct. 1083, 1088-89 (1987) (quotation marks omitted); see also State v. Stone, 572

N.W.2d 725, 729 (Minn. 1997) (applying the Cabazon test).

              [I]f the intent of a state law is generally to prohibit certain
              conduct, it falls within Pub. L. 280’s grant of criminal
              jurisdiction, but if the state law generally permits the conduct
              at issue, subject to regulation, it must be classified as
              civil/regulatory and Pub. L. 280 does not authorize its
              enforcement on an Indian reservation.

Cabazon, 480 U.S. at 209, 107 S. Ct. at 1088.

       The Minnesota Supreme Court has adopted a two-step approach to the Cabazon

prohibitory/regulatory test. Stone, 572 N.W.2d at 730; see State v. Losh, 755 N.W.2d 736,

744 (Minn. 2008) (applying Stone two-step approach to the Cabazon test).                First,

Minnesota courts determine whether the Cabazon analysis should focus on the broad or

narrow conduct affected by the statute. Stone, 572 N.W.2d at 729-30. For example, the

broad conduct affected by a statute prohibiting underage alcohol consumption is alcohol

consumption, and the narrow conduct is the consumption of alcohol by persons under the

drinking age. State v. Robinson, 572 N.W.2d 720, 723 (Minn. 1997). “The broad conduct

will be the focus of the test unless the narrow conduct presents substantially different or



                                              5
heightened public-policy concerns. If this is the case, the narrow conduct must be analyzed

apart from the broad conduct.” Stone, 572 N.W.2d at 730.

       After identifying the proper focus, Minnesota courts apply the Cabazon test to

determine whether the conduct at issue is generally permitted subject to exceptions or

generally prohibited. Id. In close cases, Minnesota courts consider whether the conduct at

issue violates the state’s public criminal policy seriously enough to be considered

“criminal.” Id. In doing so, courts consider four factors, but no single factor is dispositive.

See id. (describing factors).

       Bissonette argues that the Stone test is “too unreliable and subjective to be useful”

and generally criticizes Minnesota caselaw regarding the State of Minnesota’s jurisdiction

over offenses arising in Indian country within the state. However, “[t]his court is bound

by decision[s] of the Minnesota Supreme Court.” Citizens for a Balanced City v. Plymouth

Congregational Church, 672 N.W.2d 13, 20 (Minn. App. 2003). We therefore follow

Minnesota precedent when analyzing Bissonette’s jurisdictional challenge.

       Bissonette was convicted of child neglect under Minn. Stat. § 609.378, subd.

1(a)(1). The statute provides that:

              A parent, legal guardian, or caretaker who willfully deprives a
              child of necessary food, clothing, shelter, health care, or
              supervision appropriate to the child’s age, when the parent,
              guardian, or caretaker is reasonably able to make the necessary
              provisions and the deprivation harms or is likely to
              substantially harm the child’s physical, mental, or emotional
              health is guilty of neglect of a child and may be sentenced to
              imprisonment for not more than one year or to payment of a
              fine of not more than $3,000, or both.

Minn. Stat. § 609.378, subd. 1(a)(1).


                                              6
       Bissonette contends that because the child-neglect statute concerns “subjective,

degrees of negligence with regard to watching a child, which are domestic, internal

relations for any and all tribal members on the reservation,” it is not a criminal/prohibitory

statute. Bissonette argues that “Public Law 280 did not provide for this kind of jurisdiction,

which is why the Indian Child Welfare Act was adopted.” Bissonette further argues that

the statute is “civil/regulatory in nature . . . because of the religious civil rights exception”

within the statute.

       We begin by identifying the broad and narrow conduct affected by the statute.

Arguably, the broad conduct affected by the statute could be either all child neglect or

parenting in general. The narrow conduct is limited to child neglect that “harms or is likely

to substantially harm [a] child’s physical, mental, or emotional health.” Id. The statute

prohibits conduct that is more likely than not to substantially harm children, who are

especially vulnerable; it does not prohibit conduct that merely deviates from a reasonable

standard of care. See State v. Tice, 686 N.W.2d 351, 355 (Minn. App. 2004) (noting that

the child-neglect statute only criminalizes “conduct that is more than ordinary civil

negligence”), review denied (Minn. Nov. 16, 2004). Because the child-neglect statute

regulates conduct that harms or is likely to substantially harm children, it presents

heightened public-policy concerns.

       Whether we identify the broad conduct as all child neglect or parenting in general,

the more specific conduct prohibited by the statute presents heightened public-policy

concerns and justifies focusing on that narrow conduct when applying the Cabazon test.

See Stone, 572 N.W.2d at 730 (stating that the narrow conduct affected by a statute will be


                                               7
analyzed apart from the broad conduct when the narrow conduct presents heightened

public-policy concerns).

       We next consider whether child neglect, as described in the child-neglect statute, is

generally permitted subject to exceptions or is generally prohibited. See id. (“After

identifying the focus of the Cabazon test, the second step is to apply it.”). We are guided

by the public criminal-policy factors set forth in Stone, which are the: (1) extent to which

the activity directly threatens physical harm to persons or property or invades the rights of

others; (2) extent to which the law allows for exceptions and exemptions;

(3) blameworthiness of the actor; and (4) type and severity of the potential penalties for a

violation of the law. Id.

       The existence of an exception in the child-neglect statute for good-faith use of

spiritual means or prayer for treatment favors classifying the statute as civil/regulatory.

See Minn. Stat. § 609.378, subd. 1(a)(1) (“If a parent, guardian, or caretaker responsible

for the child’s care in good faith selects and depends upon spiritual means or prayer for

treatment or care of disease or remedial care of the child, this treatment or care is ‘health

care,’ for purposes of this clause.”).

       However, the three other public criminal-policy factors favor classifying the statute

as criminal/prohibitory. The child-neglect statute applies to conduct that “harms or is likely

to substantially harm [a] child’s physical . . . health.” Id. The statute therefore regulates

activity that directly threatens physical harm to persons, and the harm factor favors

classifying the child-neglect statute as criminal/prohibitory.      Moreover, we have no

difficulty concluding that a person with caretaking responsibilities for a child who


                                              8
“willfully deprives” that child of “necessary food, clothing, shelter, health care, or

supervision appropriate to the child’s age” is blameworthy. Id. Lastly, a person who is

guilty of child neglect that does not cause actual substantial harm, as is the case here, “may

be sentenced to imprisonment for not more than one year or to payment of a fine of not

more than $3,000, or both.” Id. “If the deprivation results in substantial harm to the child’s

physical, mental, or emotional health, the person 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.” Id.

       The existence of a criminal penalty alone does not dictate that the child-neglect

statute is criminal/prohibitory. See Jones, 729 N.W.2d at 9 (“The existence of a criminal

penalty alone does not dictate that a law is criminal/prohibitory . . . .”); see also Cabazon,

480 U.S. at 211, 107 S. Ct. at 1089 (“But that an otherwise regulatory law is enforceable

by criminal as well as civil means does not necessarily convert it into a criminal law within

the meaning of Pub. L. 280.”). However, the fact that the legislature established gross-

misdemeanor and felony penalties for violations of the child-neglect statute supports the

conclusion that the statute is criminal/prohibitory. See Robinson, 572 N.W.2d at 724

(concluding that the four-factor public criminal-policy analysis supported a determination

that the underage-alcohol-consumption statute is criminal partly because the statute

provides for a “criminal misdemeanor penalty”).

       In sum, because three of the four public criminal-policy factors support a conclusion

that the child-neglect statute applies to conduct that is generally prohibited, we conclude

that the statute is criminal/prohibitory.         Because the child-neglect statute is

criminal/prohibitory, the state has express jurisdiction under Public Law 280 to enforce the


                                              9
statute within the boundaries of the Leech Lake Reservation. We therefore affirm without

addressing Bissonette’s arguments that presume the absence of an express grant of

jurisdiction. See, e.g., State v. R.M.H., 617 N.W.2d 55, 60-65 (Minn. 2000) (discussing

the extent to which the state can exercise jurisdiction on a tribal reservation absent express

federal consent); Stone, 572 N.W.2d at 731-32 (describing “exceptional circumstances” in

which a state may assert jurisdiction over the on-reservation activities of tribal members

without an express federal grant of authority (quotation marks omitted)).

       Affirmed.




                                             10
