                        This opinion will be unpublished and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
                                   A14-0979

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Melissa Jean Crawley,
                                     Appellant.

                                 Filed June 8, 2015
                                     Affirmed
                                 Klaphake, Judge*

                            Winona County District Court
                             File No. 85-CR-08-1211

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

Karin L. Sonneman, Winona County Attorney, Stephanie E. Nuttall, Assistant County
Attorney, Winona, Minnesota (for respondent)

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

Scott M. Flaherty, Daniel M. White, Special Assistant Public Defenders, Briggs and
Morgan, P.A., Minneapolis, Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and

Klaphake, Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

KLAPHAKE , Judge

          Appellant Melissa Jean Crawley challenges her conviction for the misdemeanor

offense of falsely reporting a crime following the supreme court’s vacation of her

conviction on the gross misdemeanor offense of falsely reporting police misconduct,

arguing that a change in the law that invalidated her conviction on the more serious

offense made a jury instruction erroneous on the lesser included offense. Because the

change in the law did not affect the jury instruction on the lesser included offense, we

affirm.

                                     DECISION

          On appeal to this court following her 2009 conviction for gross misdemeanor

falsely reporting police misconduct, this court reversed Crawley’s conviction, finding that

the language of the relevant criminal statute, Minn. Stat. § 609.505, subd. 2 (2006),

violated the First Amendment prohibition against viewpoint discrimination. State v.

Crawley, 789 N.W.2d 899 (Minn. App. 2010), rev’d, 819 N.W.2d 94 (Minn. 2012). On

further review, the supreme court determined that while by definition this offense

improperly punishes a substantial amount of protected speech, a narrowing construction

of the statute would bring it within constitutional parameters. Crawley, 819 N.W.2d at

104-06.      The supreme court reversed Crawley’s gross misdemeanor conviction and

remanded for a new trial. Id. at 108-09.

          On retrial, the state sought to enter a conviction on the lesser included

misdemeanor offense of falsely reporting a crime, based on the 2009 jury’s guilty verdict


                                            2
as to that offense. Crawley argued that because the 2009 jury did not receive “an

instruction under Minnesota Statutes 631.06[,] what’s also known as a Jacobs

instruction[,] that [Crawley] can’t be convicted based on their finding of guilt as to the

misdemeanor.”1 The district court rejected this argument, finding that Jacobs does not

apply because Crawley was not charged with criminal defamation. Accordingly, the

district court accepted the 2009 guilty verdict on the misdemeanor offense and entered a

judgment of conviction on that offense. In this appeal, the state again argues that the jury

was not required to be given a Jacobs instruction because falsely reporting a crime does

not constitute criminal defamation.

       “District courts are given broad discretion to determine how to proceed on

remand, as they may act in any way not inconsistent with the remand instructions

provided.” State v. Montermini, 819 N.W.2d 447, 454 (Minn. App. 2012) (alteration and

quotation omitted). “We review a district court’s compliance with remand instructions

for an abuse of discretion.” Id.

       Minnesota Statutes section 631.06 (2006) provides:

                     In criminal trials, the court shall decide questions of
              law, except in cases of criminal defamation, and the jury shall
              decide questions of fact. The defendant may object to a
              decision of the court on a matter of law. Although the jury
              may return a general verdict including questions of law as
              well as fact, it shall receive as law the court’s instructions.

Crawley contends that the supreme court’s opinion in Crawley brings the misdemeanor

charge of falsely reporting a crime within the purview of criminal defamation, therefore

1
  State v. Jacobs, 166 Minn. 279, 207 N.W. 648 (1926), involved a charge of criminal
libel.

                                             3
requiring the jury to determine questions of law and fact and be so instructed. We

disagree.   In Crawley, the supreme court relied on Minnesota’s definition of civil

defamation in interpreting the gross misdemeanor offense of falsely reporting police

conduct, ruled that the statutory definition of the offense does not meet all of the elements

of defamation, and determined that it could uphold the constitutionality of the criminal

statute by narrowly construing it to refer only to communications satisfying the

defamation definition. 819 N.W.2d at 104-05. However, the supreme court confined its

holding to the gross misdemeanor offense of falsely reporting police misconduct, and it

referenced the offense of falsely reporting a crime only for the proposition that “less

discriminatory alternatives . . . exist” to deter the unnecessary diversion of public safety

resources to address false reports of crimes. Id. at 126. Accordingly, the supreme court’s

holding was limited to the gross misdemeanor offense of falsely reporting police

misconduct and did not affect the validity of the misdemeanor offense of falsely reporting

a crime or transform that offense into criminal defamation. Therefore, the district court

did not abuse its discretion when it dismissed the gross misdemeanor conviction of

falsely reporting police misconduct and entered a judgment of conviction on the lesser

included misdemeanor offense of falsely reporting a crime. See Montermini, 819 N.W.2d

at 454.2




2
  Crawley further argues that her conviction violates due process because the supreme
court’s decision in Crawley changed the law and could have altered the jury’s verdict. As
the supreme court did not change the law regarding the misdemeanor offense of falsely
reporting a crime, Crawley’s claim is without merit.

                                             4
       Crawley also raises a statutory construction argument for the first time in her reply

brief, but the scope of this brief is limited to “new matter raised in the brief of the

respondent.” Minn. R. Civ. App. P. 128.02, subd. 4. We therefore decline to address this

argument on appeal. State v. Yang, 774 N.W.2d 539, 558 (Minn. 2009) (striking a jury-

instruction argument included in a reply brief when the state “did not raise this matter in

its [principal] brief”).

       Affirmed.




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