IN COURT OF APPEALS
Richard Robert Wemyss,
a/k/a Richard Robert Weyness,
Filed May 24, 2005
Ramsey County District Court
File No. K2-03-2511
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant
John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and
Timothy T. Mulrooney, Rochelle Hauser (certified student attorney), Henson & Efron, P.A., 220 South Sixth Street, Suite 1800, Minneapolis, MN 55402-4503 (for appellant)
Considered and decided by Dietzen, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.
1. A defendant charged with failing to register as a predatory offender has a right to stipulate to the prior conviction(s) creating a duty for him to register.
2. Evidence tending to show that a defendant had knowledge of his duty to register as a predatory offender is admissible if it does not undermine any defense stipulation to the prior conviction(s) creating the duty to register.
Appellant challenges his conviction for failure to register as a predatory offender, arguing that the district court erred by admitting irrelevant and prejudicial evidence and that the evidence was insufficient to sustain the charge. We conclude that the district court abused its discretion in admitting some of the challenged evidence, but the error was harmless, and the evidence as a whole was sufficient to support the jury’s verdict. Therefore, we affirm.
On February 27,
1996, appellant Richard Robert Wemyss was convicted of third-degree criminal
sexual conduct. As part of his sentence,
Wemyss was required to register as a predatory sex offender with the Bureau of
Criminal Apprehension (BCA) for ten years.
Wemyss initially registered on March 15, 1996. Since that time, Wemyss periodically updated
the BCA and local law enforcement authorities with changes in address, place of
employment, and ownership of vehicles. The
BCA annually attempted to contact Wemyss by mail for verification of his data,
but the letters were either unanswered or undeliverable to the address on
file. As of August 2002, Wemyss’s most
recent address on file with the BCA was
July 10, 2003, a state patrol officer conducted a traffic stop of a vehicle and
noticed Wemyss among the passengers.
Wemyss told the officer that he was “staying” at 1003
that evening, two Mounds View police officers contacted Wemyss at the front
door of the 1003
At a pretrial hearing, Wemyss stipulated to the following two of the four elements of the offense: (1) he was a person required to register as a predatory offender; and (2) the time period during which he was required to register had not lapsed. Wemyss did not stipulate to the element that he knowingly violated any of the statutory predatory-offender registration requirements. Wemyss testified that he understood that he was stipulating to the first element so he could “remove any mention of the prior criminal sexual conduct charge from the jury.”
After accepting the stipulation, the prosecutor advised Wemyss that the state would be introducing exhibits of Wemyss’s prior predatory-offender registrations and that some of the registrations would mention his underlying conviction. Wemyss objected to the exhibits, arguing that his past registrations were not relevant to the current offense and that the exhibits were contrary to the intent of Wemyss’s stipulation, namely, removing any mention of his underlying conviction from the purview of the jury. The state argued that the exhibits were important for the jury to understand Wemyss’s compliance history with the predatory-registration statute. The district court found that the exhibits were relevant and probative and overruled the objection. The district court also denied Wemyss’s requests to redact terms such as “sex offender” and “predatory offender” from the exhibits.
At trial, the state called the program administrator in the BCA’s predatory-registration unit to introduce 29 exhibits regarding Wemyss’s history of compliance with applicable predatory-registration requirements. The exhibits were generally in three categories. First, 19 exhibits were predatory offender information forms (predatory information forms). These exhibits were completed by Wemyss and signed by a probation officer whenever Wemyss changed his address, employment, or vehicle. Second, one exhibit was entitled “Sex Offender Notification and Registration Form” (SO Registration Form), which stated that Wemyss was notified of his duty to register as a “sex offender” because he was “convicted of engaging in sexual penetration with a 14 [year] old neighbor girl.” Third, there were nine exhibits which consisted of five annual requests (annual request forms) for Wemyss to provide updated information to the BCA. Four out of the nine exhibits superimposed a mailing envelope with the notation “Returned to Sender” over the BCA requests.
state introduced testimony from the state patrol officer, the Mounds View
police officer, the police investigator, the BCA administrator, and Wemyss’s
supervised-release agent. The
supervised-release agent testified that, in his opinion, Wemyss had knowledge
of the predatory offender registration procedures. The only evidence introduced by Wemyss
consisted of testimony from a
After completion of the trial, the jury found Wemyss guilty of failure to register as a predatory offender. The district court sentenced Wemyss to two years in prison, imposed a $50 fine, and extended the period that Wemyss must register as a predatory offender by five years. This appeal follows.
1. Did the district court err when it admitted all of the state’s exhibits into evidence?
2. Were the district court’s erroneous evidentiary rulings harmless?
3. Was the state’s evidence subject to Spreigl procedures?
4. Was the state’s evidence sufficient to support the jury’s verdict?
Wemyss was convicted under a statute that makes
it a felony for a predatory offender to “knowingly violate” the statute’s
registration requirements. Minn. Stat. § 243.166,
subd. 5(a) (2002). A person is required
to register under the predatory-offender statute if the person was convicted
of, among other crimes, third-degree criminal sexual conduct.
Wemyss argues that his conviction must be reversed because the state’s registration exhibits were erroneously admitted. Wemyss argues that the admission of the exhibits, which included the labels “sex offender” and “predatory offender,” undermined the stipulation he made to his prior conviction. The state contends that the exhibits were relevant because they tended to prove that Wemyss was familiar with the registration requirements under the predatory-offender statute, and the probative value of the exhibits was not substantially outweighed by a danger of unfair prejudice.
“The district court has
discretion in the admissibility of evidence and its ruling will not be reversed
absent an abuse of discretion.” State
v. Matelski, 622 N.W.2d 826, 831 (Minn. App. 2001), review denied (
A criminal defendant has
a right to keep “potentially prejudicial evidence of [a] prior conviction from
the jury,” even when that conviction is an element of the offense, by
stipulating to the prior conviction and removing the issue from the case. State
v. Berkelman, 355 N.W.2d 394, 396-97 (
Because of the stipulation made by the defense, the state was required to prove only that Wemyss knowingly failed to register his new address as of July 10, 2003. The state argues that the exhibits admitted were relevant to prove this element of the offense. Wemyss, however, argues that any evidence of past registrations and failures to register was irrelevant to that element and were rendered inadmissible by his stipulation. We disagree. “A defendant may not be allowed to unilaterally control the need for relevant evidence by offering to stipulate, especially where the evidence bears upon other issues not covered by the stipulation.” Matelski, 622 N.W.2d at 832.
The predatory offender information forms
contained responses that set forth the changes in Wemyss’s addresses, places of
employment, and vehicles. As the state
argues, they are relevant to Wemyss’s knowledge of his duty to register as a
predatory offender and the manner in which he notified the BCA of changes in
his address. See
Wemyss next argues that the court’s failure
to redact the terms “predatory offender” and “sex offender” on the admitted
exhibits was error, and along with the utterance of the same terms on several
occasions by the prosecutor, denied Wemyss’s right to a fair trial. The district court denied Wemyss’s request to
redact the allegedly prejudicial terms in the exhibits and prohibit the state
from using the terms because the issue at trial was whether Wemyss knowingly
violated any of the statutory predatory offender registration requirements.
The term “predatory offender” is the term
used in the statute to refer to those required to register. But Wemyss stipulated that he was required to
register as a predatory offender to avoid the potential prejudice of the repeated
references to him as a “predatory offender” or “sex offender” before the jury. Although the jury needed to be informed of
this stipulation, use of the terminology “predatory offender” or “sex offender”
tended to undermine the stipulation. In Davidson, the supreme court held that a
defendant charged with possession of a handgun had a right to stipulate to his
prior felony conviction, and that the court “should have instructed the jury to
the effect that defendant had stipulated that under
The state argues that the stipulation did not explicitly preclude it from referring to Wemyss as a predatory offender. But the issue is not the scope of the stipulation as agreed on by the parties, but rather the benefit of the stipulation to which Wemyss was entitled under Davidson and Berkelman. As we read the supreme court’s holdings in Davidson and Berkelman, Wemyss was entitled to the benefit of the stipulation to avoid the potential prejudice of those references of him before the jury. Because the references to Wemyss as a predatory offender were prejudicial and undermined the stipulation, we conclude that the district court abused its discretion in admitting the exhibits without redacting those references, and in allowing the prosecutor to refer to Wemyss as a “predatory offender” and a “sex offender.”
Next, Wemyss argues that one of the responses on the SO Registration Form signed by him on March 15, 1996, violated the pretrial stipulation because it states the details of Wemyss’s underlying conviction, sexual penetration with a 14-year-old neighborhood girl. Wemyss argues that he entered the stipulation to avoid testimony detailing the nature of his underlying conviction. We agree. The exhibit violated the stipulation by going into the details of his conviction and was not relevant to the element of the offense that Wemyss did not stipulate to—that he knowingly violated any of the statutory predatory-offender-registration requirements. And, Wemyss properly requested that the offending language be redacted. Consequently, we conclude that the district court abused its discretion by admitting the SO Registration Form without redacting the offending language.
Finally, based on our review of the record, we conclude that the district court also abused its discretion when it admitted the nine annual request forms for Wemyss to keep his registrations updated—which included five instances of annual request forms returned to the BCA undelivered or unanswered. The exhibits were not relevant to whether Wemyss knowingly failed to comply with all of the predatory registration requirements. Because these requests were returned to the BCA undelivered, it is unclear whether Wemyss even saw the requests. The requests also could have been returned to the BCA if Wemyss unknowingly did not provide the BCA with an updated address on a timely basis, or if the mail was not delivered through no fault of Wemyss. None of these scenarios are relevant to the “knowledge” element the state was charged with proving at trial. Therefore, we conclude that these nine exhibits were irrelevant under Minn. R. Evid. 401 and should not have been admitted at trial by the district court.
that because the district court erred when it admitted the unredacted exhibits
and other references to “predatory offender” and “sex offender,” he is entitled
to a new trial. But Wemyss’s conviction
need not be vacated if the district court’s errors were harmless. “[A]ppellate courts must look to the basis on
which the jury rested its verdict and determine what effect the error had on
the actual verdict.” State v. Jones,
556 N.W.2d 903, 910 (
In addition to the exhibits improperly admitted without redaction, the state presented testimony from the patrol officer, the Mounds View police officer, the police investigator, and the supervised-release agent. This testimony revealed that (1) Wemyss was registered at 435 University Avenue in Saint Paul but said that he had been staying at 1003 Montclair “for weeks”; (2) Wemyss was found at 1003 Montclair; (3) Wemyss became belligerent once officers challenged him on his address; (4) Wemyss did not register the 1003 Montclair address with the police department before July 10, 2003; and (5) Wemyss appeared knowledgeable about the predatory offender registration requirements. Wemyss also presented evidence that he had attempted to orally report a new address in 2002 or 2003, strongly indicating that he knew of the registration requirement. Based on this record, we conclude that the jury had ample evidence to conclude beyond a reasonable doubt that Wemyss knowingly failed to register, and thus its verdict was surely unattributable to the error. Therefore, although the district court erroneously admittedevidence that undermined the stipulation, the error was harmless beyond a reasonable doubt.
also argues that the state’s exhibits were Spreigl evidence and
improperly admitted by the district court.
A district court may not receive
evidence of other crimes and misconduct unless the state provides notice to the
defendant. State v. Spreigl, 272
We disagree with
Wemyss’s argument that the exhibits were improper Spreigl evidence. First, we have already concluded that ten of
the 29 exhibits were erroneously admitted into evidence, which makes a Spreigl
analysis unnecessary as to
those exhibits. Second, the procedural Spreigl
requirements only apply to other crimes and misconduct by the
defendant. Spreigl, 272
finally argues that the state’s evidence is insufficient to convict him of
failure to register as a predatory offender.
After examining the record, appellate courts must determine if the
evidence, viewed in the light most favorable to the conviction, “was sufficient
for the jurors to reach their verdict.” Matelski,
622 N.W.2d at 830. We “must assume the
jury believed the state’s witnesses and disbelieved any evidence to the
the evidence in the light most favorable to the conviction, we conclude that
there was ample evidence for the jury to find Wemyss guilty of failure to
register as a predatory offender. At the
time of the offense, the predatory-offender statute required Wemyss to report the
addresses of his primary and secondary residences. Minn. Stat. § 243.166, subd. 4a(b). Testimony at trial revealed that on July 10,
2003, a state patrol officer stopped a vehicle in which Wemyss was a passenger,
and Wemyss told the officer that he was “living” or “staying” at 1003
D E C I S I O N
Because we conclude that the district court’s improper admission of evidence was harmless error, that Wemyss’s Spreigl argument is without merit, and that the remaining evidence was sufficient to support the jury’s verdict, we affirm Wemyss’s conviction of failure to register as a predatory offender under Minn. Stat. § 243.166 (2002 & Supp. 2003).
 One of the five BCA memoranda did not feature a superimposed “Returned to Sender” envelope, but instead contained a notation on the memorandum that no reply had been received.