This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Mark Clifford Newell,




Filed October 8, 2002


Randall, Judge

Concurring specially, Harten, Judge


Beltrami County District Court

File No. K4-01-756



Blair W. Nelson, 1421 Bemidji Avenue North, Bemidji, MN  56601 (for appellant)


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul MN  55103; and


Timothy R. Favor, Beltrami County Attorney, Eric Schieferdecker, Assistant County Attorney, Beltrami County Courthouse, 619 Beltrami Avenue Northwest, Bemidji, MN 56601 (for respondent)



            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges a district court order holding that: (a) he was required to register as a predatory offender under Minn. Stat. § 243.166 (2000); and (b) he was required to complete a sex-offender treatment program.  We affirm.


            On the evening of December 5, 1999, appellant went to the home of Kim Woodland, an acquaintance he had met at a bar earlier in the evening.  While in Woodland's home, appellant engaged in sexual contact with A.G., Woodland's friend who had fallen asleep fully clothed on Woodland's floor and awoke to appellant sexually penetrating her.  A.G. reported this contact to the police as nonconsensual, and, following an investigation, appellant was charged with criminal sexual conduct in the fifth degree under Minn. Stat. § 609.3451, subd. 1(1) (1998).

            On September 12, 2001, appellant attempted to plead guilty to the charge of fifth-degree sexual assault.  However, following a presentence investigation and court-ordered sex-offender evaluation, the charge was subsequently amended on December 4, 2001, to a charge of criminal sexual conduct in the third degree under Minn. Stat. § 609.344 (1998).  Appellant subsequently withdrew his plea to the amended gross-misdemeanor charge.

            On December 13, 2001, appellant pleaded guilty to an amended charge of indecent exposure under Minn. Stat. § 617.23, subd. 1(3) (1998).  To make a factual record to support a charge of indecent exposure, appellant agreed that he engaged in sexual intercourse in someone else's home, Woodland's, without Woodland's consent.

            Prior to sentencing, appellant obtained an independent sex-offender evaluation, which concluded, contrary to the original evaluation, that sex-offender treatment was not necessary to treat appellant.  Appellant then submitted a memorandum to the court, arguing that he should not be required to register as a predatory sex-offender or undergo sex-offender treatment.

            On January 22, 2002, appellant was sentenced to 90 days in jail, with 60 days stayed and one year of probation.  Appellant was also ordered to register as a predatory offender and successfully complete a sex-offender treatment course.  Appellant appealed the decision of the district court.


            On appeal, appellant presents two arguments: (1) that because he pleaded guilty to a misdemeanor he should not be required to register as a predatory offender under Minn. Stat. § 243.166 (2000); and (2) that the district court abused its discretion when it ordered appellant to complete a sex-offender treatment program.  While noting the strength of appellant's arguments, we affirm.  

Appellant argues that the district court erred by requiring him to register as a predatory offender under Minn. Stat. § 243.166, subd. 1(1), because he was ultimately convicted of misdemeanor lewd and lascivious conduct rather than felony criminal sexual conduct.  Minn. Stat. § 243.166, subd. 1, states in pertinent part:

Registration required.  (a) A person shall register under this section if:

(1)       the person was charged with or petitioned for a felony

violation of or attempt to violate any of the following, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances: * * *

(iii)           criminal sexual conduct under section 609.342; 609.343; 609.344; 609.345; or 609.3451, subdivision 3;


Appellant does not contend that he was not originally charged with a felony enumerated in Minn. Stat. § 243.166.  Rather, appellant argues that it was not the legislative intent of the 1993 amendment of Minn. Stat. § 243.166 to include misdemeanor convictions as "other offense[s] arising out of the same set of circumstances."  We disagree.

Questions regarding whether a statute has been properly construed are questions of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  The object of statutory interpretation is to ascertain and effectuate legislative intent.  See Minn. Stat. § 645.16 (2000).  Generally, if statutory language is plain and unambiguous, the court must only look to the plain meaning of the statutory language.  Wegener v. Comm'r of Revenue, 505 N.W.2d 612, 617 (Minn. 1993).  Statutes are to be construed, if possible, "so that no word, phrase, or sentence is superfluous, void, or insignificant."  Duluth Firemen's Relief Ass'n v. City of Duluth, 361 N.W.2d 381, 385 (Minn. 1985) (citation omitted).

            Here, the Minnesota Supreme Court decision of Boutin v. LaFleur and this court's unpublished decision of State v. Kemmer are instructive.  Boutin v. LaFleur, 591 N.W.2d 711 (Minn. 1999); State v. Kemmer, No. C6-00-142, 2001 WL 345470 (Minn. App. Apr. 10, 2001).  In Boutin, the Minnesota Supreme Court, examining the statutory construction of the 1993 amendment to Minn. Stat. § 243.166, held that under the plain meaning of the statute the defendant, who was charged with third-degree sexual conduct but pleaded guilty to the lesser offense of assault, was required to register as a sex-offender because the assault arose out of the same set of circumstances as the charged sexual assault offense.  Boutin, 591 N.W.2d at 715-16.  In Kemmer, this court held that a person convicted of gross-misdemeanor sodomy must also register as a sex-offender if the offense arose out of the same circumstances as the original charge of fourth-degree criminal sexual conduct.  Kemmer, 2001 WL 345470, at *2-*3.

            Examining the plain meaning of the statute, it is evident that appellant's misdemeanor conviction is included as an "other offense" under Minn. Stat. § 243.166.  The statute is clear and unambiguous on its face, and therefore we need not examine the intent of the legislature.  Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 9, 153 N.W.2d 209, 216 (1967). 

            While we are constrained to affirm the trial court on the plain meaning of the statute, we appreciate the enormity of the potential unchecked power this statute, as written, places in the hands of the prosecutor who has sole control over which offense to charge.  For instance, in some criminal sexual conduct cases, the state's case against the defendant weakens so significantly that the state will agree to plea bargain down from a serious sexual-assault charge to a misdemeanor such as simple assault, disorderly conduct, or as here, a charge of lewd and lascivious conduct. Defendants may consider it prudent to accept a plea of guilty to a lower-level misdemeanor charge rather than go through the uncertainty of a trial on an egregious sexual assault charge.  Yet, the stigma of the original "charge" remains (meaning the registration requirement), even though it is now self-evident that the original charge did not result in a conviction.  So here, despite the state's acquiescence in reducing a felony charge down to a misdemeanor, the predatory requirement remains simply because the case was originally "charged" as a felony.  Put another way, this is one of the few times in American jurisprudence where the "charge is the conviction," meaning that once you are charged with an enumerated felony under the statute, you are "convicted of having to register" even if the ultimate result is a low-ranking misdemeanor.  Amendments to the sexual-predator registration statutes are left to the legislature, but this case, and appellant's position, articulates a troubling concept.

            Appellant additionally argues that the district court erred when it ordered him to complete a sex-offender treatment program.

Minn. Stat. § 609.3452, subd. 1 (2000), provides, in relevant part:

            When a person is convicted of a violation of section * * * 609.344 [Criminal sexual conduct in the third degree] * * * or another offense arising out of charge based on [that section], the court shall order an independent professional assessment of the offender's need for sex-offender treatment. (emphasis added.)


Appellant does not contest that a sex-offender assessment was necessary.  Rather, appellant objects to the district court's adoption of the court-appointed psychologist's recommendation of sex-offender treatment over the recommendations of his privately-funded psychologist.  Appellant asserts that the report of Dr. Sweet, based on a psychological evaluation performed at appellant's expense, is more accurate that the evaluation performed by the court-appointed psychologist. Appellant argues that: (1) the court-appointed assessment was based on the criminal sexual conduct charge and appellant's refusal to accept responsibility for it, and (2) the report of Dr. Sweet was later in time and relied on a more accurate record.             

            Although we understand appellant's argument that the state's initial assessment was predicated on more serious charges than the assessment done by his expert, given the discretion the district court has in evaluating competing testimony, we affirm the district court's decision to order treatment.




HARTEN, Judge (concurring specially)

            I agree with the result.