This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
David Raymond Delapaz,
Filed July 10, 2007
Clay County District Court
File No. K7-05-1392
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Brian J. Melton, Clay County Attorney, 807 N. 11th Street, P.O. Box 820, Moorhead, MN 56561 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Appellant David Raymond Delapaz challenges his conviction of failing to register as a predatory offender, arguing that he was not charged with or convicted of violating the law in effect at the time of his alleged offense. We conclude the law in effect at the time of the charged offense was substantially the same, or the same, as the charged offense and the jury was properly instructed. We affirm.
Delapaz has been required to register as a predatory offender since his
second-degree criminal-sexual-conduct conviction in 1994. He was living at Churches United shelter in
registered with the Churches United shelter on March 30 and having lived there
for more than 30 days, appellant became eligible for the shelter’s assistance
in obtaining transitional housing. On
June 2, 2005, he applied for transitional housing; on June 13, he received
notice that he had been accepted; and on June 16, he signed a lease for and
moved into a
On June 17, 2005, officers responded to a call regarding an alleged assault at appellant’s apartment. The officers made contact with appellant at the apartment, but appellant declined to speak with them. On June 22, when the officers returned, he let them in and told them he had moved into the apartment on June 16. He stated that he lived there and denied any involvement with the alleged assault.
After identifying appellant on June 22, conducting a routine background check, and determining that appellant was required to register as a predatory offender, the officers confirmed with the landlord that appellant had moved into the apartment and signed a lease on June 16. Officers visited the apartment on June 27 and June 28, but appellant did not answer the door. During the latter visit, the officer saw appellant’s name on the mailbox.
On June 29, an officer received a voicemail from appellant that he would be coming into the department that morning. Appellant did not come in, but, later in the day, was brought in after he was found sleeping in an illegally parked trailer. He explained to the officers that he still did not have a primary address. Nevertheless, he completed a form setting out his previous address (Churches United shelter) and the address of the apartment.
Appellant was charged with one count of failure to register as a predatory offender in violation of Minnesota Statutes section “243.166 subd. 1(a)(1)(iii), subd. 5,” carrying a maximum penalty of five years and $10,000. The parties stipulated that appellant was required to register under the predatory-offender statute, leaving for trial the sole issue of whether appellant had complied with the statutory requirements for registering. The jury returned a guilty verdict, and the court sentenced appellant to 24 months. On appeal, appellant argues for the first time that he was not charged with or convicted of the law in effect at the time of the offense.
complaint is a written, signed statement of the essential facts constituting
the offense charged.
Appellant was charged under the statute section titled “REGISTRATION OF PREDATORY OFFENDERS,” Minn. Stat. § 243.166 (Supp. 2005). The specific charge set out in the complaint was violation of “243.166 Subd. 1(a)(1)(iii), Subd. 5.” No dates followed the citation to the two subdivisions, but it is undisputed that the complaint alleged criminal conduct occurring on or about June 17, 2005.
the time of the alleged offense, the predatory-offender registration statute
had recently been amended. See 2005
a repealed law’s provisions are reenacted at the same time and in the same or
substantially the same terms, however, the rights and liabilities incurred
under the earlier law are enforceable.
Aside from appellant’s legal argument that he was convicted of a repealed statute, he argues that he was not tried for and convicted of the law in effect at the time of the offense. Appellant seems to argue that the failure-to-register offense had changed due to various amendments to other relevant subdivisions of section 243.166 that became effective on June 3. His argument is based on the jury instructions that he claims did not state the law in effect on or about June 17.
courts are allowed “considerable latitude” in the selection of language for the
jury instructions. State v. Baird, 654 N.W.2d 105, 113 (
appellant did not object to the jury instructions at trial, this court has the
discretion to consider the issue on appeal if it is plain error affecting
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (
the date of appellant’s offense, it was a crime for appellant to “knowingly
violate any of [section 243.166’s] . . . provisions.”
The court’s instructions on the elements of failure to register tracked the law as it was on the date of the offense with three deviations: 1) as for the requirement that an offender register a “new primary address,” the court referred once to a “new primary living address” and once to the “new primary address” ; 2) as for the required notice that an offender must give to law enforcement, the court used the term “residence” instead of “primary address”; and 3) as for homeless persons, the court instructed the jury pursuant to caselaw that had been superseded by new statutory language. Appellant fails to demonstrate how these deviations constitute reversible error.
The first two deviations from the
statutory language were not material misstatements of the law. Appellant was required to register his “primary
address” or the address for the place where he lived. Minn. Stat. § 243.166, subd. 3(b). As defined in the statute, “’[p]rimary
address’ means the mailing address of the person’s dwelling,” and “’[d]welling’ means the building where the
person lives under a formal or informal agreement to do so.” Minn. Stat. § 243.166, subd. 1a(g), (c). Read in the context of the entire statute, we
discern no reason to distinguish the phrase used by the court, “new
primary living address,” from the statutory language, “new primary address.” Similarly, the court’s single reference to “residence” in place of “primary address” is not a material misstatement of the law. See Minn. Stat. § 243.166, subd. 3(b). As the terms are used in the context of the statute, the critical issue is where the person is “living” or “staying.” Because “residence” is commonly understood as “the place in which one lives,” The American Heritage College Dictionary at 1161 (3d ed. 1997), and such a place typically has a mailing address, there is no material distinction between describing one’s residence and one’s “primary address.” The terms used by the court accurately defined the crime charged. Appellant has not shown a material error. 
court’s third deviation from the statutory language was an instruction,
requested by appellant, following the holding in State v. Iverson, 664 N.W.2d 346 (
A review of the record supports the jury verdict: on or about June 17, appellant had a primary address that he should have registered within five days. He lived at the apartment for thirteen days before he was picked up and brought in for failing to register. The evidence also showed that appellant knew he was required to register within five days of his move, and his reasons for failing to register did not excuse him.
We note that the evidence showed how appellant’s efforts to establish a home were complicated by his status as a sexual offender, his medical condition, and his history of transience. The statute is technical, is complicated, and is not all that clear. Under appellant’s difficult circumstances, this statute is unduly punitive.
 Although not relevant to appellant’s case,
the 2005 amendment enlarged who must register by adding those who aid or abet
criminal sexual conduct under Minn. Stat. § 609.3453. 2005
 The language of this subdivision at the time of the offense was identical to that effective in 2004, save for three amendments that appellant does not specifically challenge: the “Bureau of Criminal Apprehension” was changed to “bureau;” the scope of violations was broadened to encompass violations of “a similar statute of another state or the United States”; and conditional release was disallowed for those convicted under the statute. 2005 Minn. Laws ch.136, art 3, sec. 8.
 No definition of “primary address” or “primary living address” existed prior to June 3, even though those terms were in use. As the terms were used in the 2004 statutes, there would be no reason to attach different definitions to them and appellant does not set forth an argument that they had different definitions under the old law. The common use of the term “address” is mailing or street address. See Black’s at 39 (defining address as place where mail or other communication is sent); The American Heritage College Dictionary at 15 (3d ed. 1997) (address is “written directions on mail indicating destination” and “location at which a person or organization may be found or reached”). See generally Minn. Stat. § 645.08 (2006) (words are to be construed according to common and approved usage).
 The terms were used interchangeably at
trial. Counsel for both appellant and respondent used the term
“primary residence” in their opening arguments.
After that, they presented documentary evidence and testimony regarding
appellant’s prior registrations, focusing on his “address.” Appellant was aware that he must “register
all changes of address at least five
days prior to moving.” He claimed that
he did not have a permanent “address” in
 Appellant quotes statutory definitions of “primary residence” and “secondary residence” under 2003 law, which do not apply to this offense.