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be unpublished and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
State of Minnesota,
David T. Hobbs,
September 12, 2006
File No. 04022990
Mike Hatch, Attorney General, 1800 Bremer Tower, 445
Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Michael Richardson,
Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for
Bradford Colbert, 875
Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
and decided by Toussaint,
Chief Judge; Stoneburner,
Judge; and Worke,
U N P U B L I S H E D O P I N I O N
Appellant asserts that the district
court abused its discretion in evidentiary rulings and that the evidence was
insufficient to support his conviction of failing to register as a predatory
offender. We affirm.
In 1995, appellant David Terrance
Hobbs pleaded guilty to criminal sexual conduct in the third degree. In April 1997, January 2000, and August 2000,
Hobbs signed sex
offender notification and registration forms, each of which included the
I have been notified
of my duty to register as a sex offender in accordance with Minn. Stat. section
243.166. I understand that I must
register for a period of ten years from the date that I was initially
registered, or until my probation, supervised release, or conditional release
period expires, whichever occurs later. . . . I understand that
I must register all changes of address at least 5 days prior to changing that
address, including moving to another state.
I will make this notification in writing to my current Minnesota or Federal corrections agent, or,
if I do not have a corrections agent, I must notify the law enforcement agency
in the community in which I reside. . . .
I understand that I
am legally required to supply the requested data under Minn. Stat. section 243.166,
including written response on forms provided, to periodic address verification
requests. I also understand that failure
to comply or to provide false information is a gross misdemeanor and any subsequent
violation is a felony.
I understand that the
information provided will be used for law enforcement purposes, and other
purposes established by law. I also
understand that it is a gross misdemeanor to provide false information in the
completion of this form and I attest to the accuracy of the information I have
In September 2001, before his release from prison, the Bureau of Criminal
Apprehension (BCA) sent Hobbs a form entitled “Offender Prison Notification and
Registration Advisory Offender’s Duty to Register” (advisory). This form indicates that the offender must
initial each paragraph of the advisory and sign it. Hobbs’s
form has a handwritten notation on his signature line that states: “Refused to
sign – read and explained to him.” The
document is signed by Hobbs’s
case manager, Rhonda R. Schultz.
Attached to the copy of the advisory that was admitted at trial as
exhibit 5 is a two-page, undated transmittal/message from Schultz to “BCA
Registration” containing the handwritten message:
Mr. Hobbs stated to me that no
one had explained the changes in the law to him (from 8-1-2000). I explained everything to him in detail. We discussed each in detail and he asked
questions. He still refused to sign the
advisory contains the same information that was on the previous forms signed by
Hobbs concerning the length of the registration obligation and the requirement
that an offender must register all changes of address at least five days before
moving, including moving to another state.
In October 2002, Hobbs was paroled from prison. He filled out a change-of-address form
indicating that his new address would be 2943 Bryant Avenue and that his parole
officer would be John Neumann. Neumann
met with Hobbs two to four times per month while
Hobbs was on
parole. In February 2003, under
Neumann’s supervision, Hobbs
filled out a change-of-information notice stating that his primary residence
changed from 2943 Bryant Avenue
to 418 East 31st Street. In April 2003, again under Neumann’s
filled out another change-of-information notice stating that his primary
residence changed from 418 East
31st Street to 1406 Newton Avenue North.
On June 25, 2003, Hobbs
met with Neumann for the last time before termination of Hobbs’s parole on July 6, 2003. Neumann reviewed with Hobbs his obligation to keep the state
notified of his address. Because Hobbs indicated to Neumann that he might move back to Michigan, Neumann gave Hobbs two blank change-of-address forms. Sometime
after his parole ended, on a date not contained in the record, Hobbs
moved to Michigan without notifying Minnesota law
enforcement of his address change. On
March 22, 2004, law enforcement became aware that Hobbs was not living at 1406 Newton Avenue North. Hobbs, who
returned occasionally to Minnesota even after
his move to Michigan,
was arrested and charged with “failure to notify of changes in predatory
offender registration” under Minn. Stat. § 243.166, subd. 5(a)(c), 4a(a), and
4a(b) (2003), “on or about March 22, 2004.”
Before trial, Hobbs
moved in limine to prevent the introduction of the advisory with Schultz’s attached
memo. The court held that the advisory,
with the attached memo, was admissible under the hearsay exception for business
At trial, a witness testified that
she had lived at 1406 Newton Avenue
North from August 2003 to July 2004 and that
during that time Hobbs
did not live there. Julianne Brunzell,
supervisor of the BCA’s sex offender registration unit, testified that she is
responsible for sex-offender records maintained by the BCA. She testified about the unit’s record-keeping
practices and Hobbs’s
records. Brunzell testified that the BCA
annually sends each registrant a letter that the registrant is to return to the
BCA to verify the registrant’s current address.
And whenever a registrant moves, the registrant is required to complete
a change-of-address form to be provided to a corrections agent or law
enforcement. Brunzell also testified
about how registrants’ records are maintained by the BCA. Brunzell identified each of the forms relating
including the advisory he did not sign, and the exhibits were admitted as
Neumann testified that he was Hobbs’s
parole officer and that he informed Hobbs
of his duty to register. Neumann
testified that he helped Hobbs
fill out change-of-address forms on two occasions. Neumann testified that at his last meeting with
Hobbs in June 2003, Hobbs
indicated that he might move to Michigan, and
Neumann gave Hobbs
two blank change-of-address forms to help him follow his registration
requirements so he “wouldn’t get in trouble.”
Neumann testified that he informed Hobbs
that even if he moved out of the state, Hobbs
would still have to follow Minnesota
law and inform the BCA of any change of address.
testified that he refused to sign the advisory because even after Schultz
explained it, he did not understand it. Hobbs testified that he told Neumann that he was going to
move to his mother’s residence in Michigan
after his parole expired and that Neumann had his mother’s address on a prior
testified that he did not remember Neumann informing him that he would have to
notify law enforcement in Minnesota
if he moved out of the state after his parole expired. Hobbs also
testified that he thought that once he was off parole he was “free to do
whatever [he] wanted to do” and that he did not have to register if he was not
living in Minnesota.
defense to the charge was that he did not knowingly
violate the registration statute.
Counsel for Hobbs told the jury in his
opening statement that “the issue in this case is, did [Hobbs] knowingly violate the registration
statute[.]” In closing argument, Hobbs’s attorney stated:
[T]he second element is, the Defendant
knowingly violated any of the requirements to register. And part of that we concede as well. . . . He
was in violation. The day he moved out
of that house at 1406 Newton
Avenue North, . . . and moved to Michigan, he violated the requirements of
registration. And there’s no denying
that. . . . and we’re not trying to deny that.
The question is, . . . did he know that he was violating these
guilty, and he was sentenced to 13 months in prison. This appeal followed.
E C I S I O N
In considering a claim of
insufficient evidence, this court’s review is limited to a careful analysis of
the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, is sufficient to allow the jurors to reach the
verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Determining the weight and credibility of
witness testimony is a matter for the jury.
State v. Moore,
438 N.W.2d 101, 108 (Minn.
1989). We must assume that “the jury
believed the state’s witnesses and disbelieved any evidence to the
“Evidentiary rulings rest within the sound discretion of the
trial court and will not be reversed absent a clear abuse of discretion.” State
v. Amos, 658 N.W.2d 201, 203 (Minn.
2003). “On appeal, the appellant has the
burden of establishing that the trial court abused its discretion [in admitting
evidence] and that appellant was thereby prejudiced.” Id.
Hobbs was charged with failure to register as
a sex offender, in violation of Minn. Stat. § 243.166, subds. 5(a)(c), 4a(a),
and 4a(b). Subdivision 5 of the statute
is the penalty provision. Subdivision
4a(a) lists the information that a person required to register must provide to
a corrections agent or law-enforcement authority. Subdivision 4a(b) provides that some of the required information must be provided
within five days of the date that the information becomes applicable, and it provides
that, if due to a change of circumstances, information previously reported is
no longer correct, the person shall immediately inform the agent or authority
that the information is no longer valid.
Hobbs was charged with violating the
statute “on or about March 22, 2004,” which was the date that law enforcement
became aware that Hobbs’s
registered address was not accurate.
At trial, Hobbs
admitted that he violated the statute by not registering his change of address with
the BCA, but argued that he did not knowingly or intentionally violate the
statute because he believed that once his parole had terminated he was no
longer required to register in Minnesota. On appeal, Hobbs does not challenge the sufficiency of
the evidence to support a determination that he knowingly failed to register. Rather, Hobbs asserts
a new argument that he was not required to register in Minnesota on the specific date of March 22,
asserts that he may have been required to register in Michigan
on that date but that he cannot be prosecuted in Minnesota
for any failure to register in Michigan.
We find no merit in Hobbs’s
claim that on or about March 22, 2004, he was not required to register in Minnesota. Hobbs
stipulated at trial that he had a continuing obligation to register until
October 1, 2012, and admitted that he failed to notify law enforcement in Minnesota when he moved to Michigan.
The date of his move to Michigan is not
in the record, but Hobbs’s
violation of the statute was continuing in nature. The evidence was sufficient to support the
At oral argument before this court, Hobbs argued for the
first time that the jury instructions were incorrect. Because Hobbs
did not raise the issue of jury instructions in his brief to this court, his
argument is waived. See Balder v. Haley, 399
N.W.2d 77, 80 (Minn.
1987) (stating that issues not briefed must be deemed waived on appeal).
of Schultz’s notation on advisory
Hobbs argues that admitting the advisory with
Schultz’s handwritten note constituted reversible error because there was no
foundation for its admission as a business record and its admission violated
his right to confront witnesses against him.
argues that Schultz’s note was made in anticipation of litigation and therefore
does not qualify as a business record.
Hearsay statements may be admissible under one of several exceptions to
the general rule excluding hearsay, including the business-records
exception. Minn. R. Evid. 802; Minn. R. Evid. 803(6); In re Simon, 662 N.W.2d 155, 160 (Minn. App. 2003). A document may be admitted as a business record
if the custodian of the record or another qualified witness testifies that the
records were (1) made by a person with personal knowledge of the matters
recorded and a business duty to report accurately or from information
transmitted by a person with such knowledge; (2) made at or near the time of
the recorded event; (3) kept in the course of a regularly conducted business
activity; and (4) made as part of the regular practice of that business
activity. Minn. R. Evid. 803 (6). “[T]he phrase ‘other qualified witness’
should be interpreted broadly and the witness need only understand the system
involved.” A & L Coating Specialties Corp. v. Meyers Printing Co., 374
N.W.2d 202, 204 (Minn.
App. 1985). We conclude that although
Brunzell was able to provide sufficient foundation for admitting the advisory
as a business record, Hobbs
is correct in asserting that Brunzell was not able to supply the necessary
foundation for admission of the two-page message from Schultz that was attached
to the advisory in exhibit 5.
Based on the record, it is not
possible to determine whether or not this message was prepared for
litigation. In determining whether a
document was prepared for litigation, a district court must consider when and
by whom the report was made and the purpose of the report. Nat’l
Tea Co., Inc. v. Tyler Refrigeration Co., 339 N.W.2d 59, 62 (Minn. 1983). There is no evidence in this case about when
Schultz wrote the message or why. The
district court abused its discretion in admitting the message attached to the
advisory as a business record.
Whether admission of evidence
violates a defendant’s rights to confront witnesses is a question of law, which
appellate courts review de novo. Lilly v. Virginia, 527 U.S. 116, 136-37, 119 S. Ct. 1887, 1900 (1999); State v. Burrell, 697 N.W.2d 579, 599 (Minn. 2005). The Confrontation Clause “bars ‘admission of
testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for
cross-examination.’” Davis v. Washington, 126 S. Ct. 2266, 2269 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct.
1354, 1356 (2004)).
It is clear that Hobbs did not have an opportunity to cross-examine
Schultz. It is less clear whether
Schultz’s message constitutes a testimonial statement excluded by Crawford.
But even if admission of the message was error, we conclude that,
under the facts in this case, the error was harmless beyond a reasonable doubt.
If an evidentiary ruling involves
constitutional error, appellate courts must determine whether the error was “harmless
‘beyond a reasonable doubt.’” State v. Richardson,
670 N.W.2d 267, 277 (Minn.
2003). An error is harmless beyond a
reasonable doubt if there is no reasonable possibility that the error may have
contributed to the conviction. Id. “If
the verdict is ‘surely unattributable’ to the error, then the error is harmless
beyond a reasonable doubt.” Id.at 279 (citation omitted). In this case, Hobbs testified that Schultz explained the
advisory to him but he did not sign it because even after the explanation, he
did not understand it. Additionally, Schultz’s
conversation with Hobbs occurred in September
2001, almost two years before Hobbs’s
parole expired. Neumann testified that
on June 25, 2003, just before Hobbs was released
from parole on July 6, 2003, Neumann reminded Hobbs
of the registration requirement, specifically told him he would need to notify Minnesota law enforcement if he moved to Michigan, and gave him
two blank change-of-address forms. We
are satisfied beyond a reasonable doubt that even if the evidence of Schultz’s
conversation with Hobbs
had been omitted, the jury would have reached the same verdict.
of evidence of prior offenses
Hobbs also argues that
the district court abused its discretion by not allowing him to stipulate to
the fact that he was a sex offender in order to avoid evidence of that fact at
trial. A criminal defendant has the
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 (Minn. 1984).
But prior convictions may still be admissible under Minn. R. Evid. 609
to impeach a defendant who testifies. Id. In
this case, the record reflects that Hobbs’s
offer to stipulate to his prior convictions was conditioned on the district
court ruling that the prior convictions could not be used to impeach him if he
Evidence of prior convictions
punishable by more than one year’s imprisonment is admissible if the court
determines that the probative value of the evidence outweighs its prejudicial
R. Evid. 609(a). In determining whether
impeachment evidence is admissible, courts must consider (1) the impeachment
value of the prior crime; (2) the date of conviction and the defendant’s
subsequent history; (3) the similarity of the past and charged crimes; (4) the
importance of the defendant’s testimony; and (5) the centrality of the
credibility issue. State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).
Hobbs’s counsel argued
that the probative value of the prior convictions did not outweigh the
prejudicial effect on the jury. The
court ruled that evidence of Hobbs’s prior
crimes could be used to impeach Hobbs
if he testified. Hobbs does not challenge this ruling on
Hobbs’s reliance on State v. Wemyss, 696 N.W.2d 802, 808-810 (Minn.
App. 2005) rev’d mem. (Minn. Aug 16, 2005),
for the proposition that the district court abused its discretion when it
allowed references to Wemyss as a “sex offender,” is misplaced. Wemyss did not testify. In contrast, Hobbs
testified, and the district court did not abuse its discretion in holding that
the prior convictions were admissible under Jones
to impeach Hobbs.