This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed December 20, 2005
Ramsey County District Court
File No. K5-03-3927
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and
Michael C. Davis, Special Assistant State Public Defender, 332 Minnesota Street, Suite 1610 West, St. Paul, MN 55101 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Stoneburner, Judge, and Crippen, Judge.
Appellant challenges his conviction for failing to register as a predatory offender in violation of Minn. Stat. § 243.166, subd. 5 (2002), questioning the sufficiency of the evidence and arguing that the district court erred when it accepted his stipulation to an element of the offense (the requirement to register) without obtaining a waiver of his jury trial rights on the record. Because the record permits the conviction for failing to provide an address, either primary or secondary, and because the inadequate waiver on an element of the offense was harmless beyond a reasonable doubt, we affirm.
On May 7,
2003, appellant updated his address by informing law enforcement that his new
primary residence was
Two weeks later, law enforcement
officers set up a sting to apprehend appellant.
An officer left appellant a phone message stating that the officer heard
appellant was looking for a ride to
Appellant was charged with one count of failure of a predatory offender to register his address. Prior to trial, appellant’s counsel requested that appellant be allowed to stipulate that he was required to register and that his requirement to register had not expired, thus keeping any mention of “predatory offender” from the jury. Appellant was present in the courtroom when the discussion of the stipulations occurred, but he was never questioned on the record as to whether he knew of his right to a jury trial on this element of the offense and wished to waive the right.
The district court accepted the stipulations and informed the jury of appellant’s stipulation that between September 20 and October 8, 2003, appellant was required to register his address, that he had acknowledged this duty in and after December 1997, and that the requirement had not lapsed. The jury found appellant in violation of Minn. Stat. § 243.166, and this appeal followed.
argues that there is insufficient evidence to support his conviction. In considering a sufficiency of the evidence
challenge, the reviewing court is “limited to ascertaining whether a jury,
giving due regard to the presumption of innocence and to the state’s burden of
proof beyond a reasonable doubt, could reasonably conclude that the defendant
was guilty based on the facts in the record and any legitimate inferences
therefrom.” State v. Harris, 589 N.W.2d 782, 791 (
was convicted of violating Minn. Stat. § 243.166, subd. 5 (2002), which
creates a felony offense for one who is required to register and knowingly
violates the statute or intentionally provides false information to a
corrections agent or a law enforcement authority. Under the statute, a predatory offender is
required to notify law enforcement of any “new primary address” at least five
days before the offender begins living at the new residence, Minn. Stat.
§ 243.166, subd. 3(b), and the offender is also required to notify law
enforcement of “the addresses of all the person’s secondary residences in
The jury heard testimony from
appellant’s sister that she learned on approximately September 22, 2003, that
her brother was no longer living at the residence and that when she spoke with
him on the phone he informed her that “he wasn’t coming back.” Agent Sailer testified on appellant’s
refusals to disclose where he was living.
A law enforcement agent testified that she watched over the residence at
This evidence creates a reasonable inference
that appellant had a secondary residence beginning on at least September 23,
2003, and that 18 days later he still had not provided his corrections agent or
law enforcement officer with that address, despite repeated requests to do so. Based on the evidence and the reasonable
inferences therefrom, the jury could reasonably conclude that appellant
knowingly violated the provision of Minn. Stat. § 243.166, subd. 4a,
requiring him to register all secondary residences within five days of obtaining
such an address. Contrary to appellant’s
assertions, these are not circumstances like those of a homeless person who is
known to have no residence where mail might be received or about which notice
might be given as required by law. Cf. State v. Iverson, 664 N.W.2d 346 (
also argues that he is entitled to a new trial because the district court
accepted his stipulation to elements of the charged offense without obtaining a
personal waiver of his right to a jury trial either in writing or on the
record. An error of this type does not
entitle a criminal defendant to a new trial if the state can establish beyond a
reasonable doubt that the error was harmless. State v.
Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (
Here the evidence is overwhelming that the error in accepting the stipulation was harmless. Appellant was fully and repeatedly present in the courtroom when the stipulation was discussed. The stipulation was for appellant’s strategic benefit of keeping potentially harmful evidence from the jury, and to eliminate any reference that he was a “predatory offender.” Moreover, the jury heard testimony from agent Sailer that appellant filed a change of address update on May 7, 2003, and that she discussed with him at that time the continuing requirement to register his address.
the undisputed public record demonstrates that appellant was convicted of
third-degree criminal sexual conduct on November 13, 1995. See
State v. Rewitzer, 617 N.W.2d 407, 411 (
Because this record demonstrates that the failure to obtain appellant’s personal oral or written waiver before accepting the stipulation to these two elements was harmless beyond a reasonable doubt, appellant is not entitled to a new trial.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Although the complaint only lists the failure to notify authorities of a change
of address as a violation of Minn. Stat. § 243.166, subd. 3(b), the jury
was instructed not only of the requirement to update a change of “primary
address” under Minn. Stat. § 243.166, subd. 3(b), but also the requirement
to register an offender’s “secondary residence” under Minn. Stat.
§ 243.166, subd. 4a. Appellant’s
brief does not allege that he was denied due process of law because the
complaint did not list subdivision 4a; if appellant had not waived this issue,
the complaint’s language is sufficient to put him on notice of the charges so
that he could present a complete defense.
See State v. Wolf, 605 N.W.2d
381, 384-85 (