This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1642

 

State of Minnesota,

Respondent,

 

vs.

 

Wallace James Beaulieu,

Appellant.

 

Filed April 4, 2006

Affirmed

Toussaint, Chief Judge

 

Beltrami County District Court

File No. K8-04-1648

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Timothy R. Faver, Beltrami County Attorney, Randall R. Burg, Assistant County Attorney, 619 Beltrami Avenue Northwest, Suite 40, Bemidji, MN 56601 (for respondent)

 

Wallace James Beaulieu, OID# 153635, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)

 

 

            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

TOUSSAINT, Chief Judge

            Appellant Wallace James Beaulieu challenges his conviction of and sentence for failure to register as a predatory offender in violation of Minn. Stat. § 243.166, subd. 5(a), (c) (2004).  Because we conclude the evidence is sufficient to support the conviction, the district court had subject-matter jurisdiction, and appellant’s other claims of error are without merit, we affirm.

FACTS

 

Appellant, a predatory offender, was charged with failing to register his address, as required by the predatory-offender registration statute, in October 2004.  Appellant filed a pretrial motion to dismiss based on lack of subject-matter jurisdiction, arguing that the predatory-offender registration statute is civil/regulatory in nature and, therefore, could not be enforced against him, an enrolled Leech Lake Band tribal member, for conduct occurring on the Leech Lake Indian Reservation.  The district court denied the motion.

At trial, appellant stipulated that he had a duty to register as a predatory offender in October 2004, and that he had a prior 2002 conviction for violating the predatory-offender-registration statute. 

Many members of appellant’s family resided on Beaulieu Circle on the Leech Lake Indian Reservation, including his uncle Kenneth Beaulieu, Sr., who lived at 7355 Beaulieu Circle, appellant’s registered primary residence.  Within a week after appellant was released from jail on October 7, 2004, police began looking for him to execute an “arrest and detain” order for a pending civil commitment proceeding.  Appellant had been informed of the preliminary status of this proceeding at a court appearance on October 5, 2004.  The state’s theory was that appellant, knowing a commitment petition might be filed, evaded police and then left Beaulieu Circle.  He was arrested on November 2, 2004 in Duluth.

Several Beltrami County deputies visited Beaulieu Circle looking for appellant.  They received differing responses from family members residing there, five of whom testified, giving different accounts of his whereabouts, but most agreeing that appellant “came and went.”  Kenneth Beaulieu, Sr., the homeowner at 7355 Beaulieu Circle, testified that appellant stayed there for three or four days.  He and other family members could not remember if appellant had his belongings with him when they last saw him.

The jury found appellant guilty of failure to register as a predatory offender.  He was subsequently convicted and sentenced to 24 months in prison.

D E C I S I O N

            Appellant argues that the district court lacked subject-matter jurisdiction, that the evidence is insufficient to support the conviction, that the prosecutor committed prejudicial misconduct, that police violated appellant’s fourth amendment rights, that the sentence was based on inaccurate information, and that applying the amended predatory-offender registration statute to him violates the Ex Post Facto Clause.

The predatory-offender registration statute makes it a crime for a predatory offender to knowingly violate any provision of the statute.  Minn. Stat. § 243.166, subd. 5(a) (2004).  The minimum sentence for an offender who has a prior conviction under the statute is two years.  Id., subd. 5(c).  The offender is required to register his “primary residence,” defined as “any place where the person resides longer than 14 days or that is deemed a primary residence.”  Id., subd. 4a(a)(2).

The evidence established that appellant, upon his release from jail on October 7, 2004, registered 7355 Beaulieu Circle as his primary residence.  An offender is also required to register a “secondary residence,” defined as “any place where the person regularly stays overnight when not staying at the person’s primary residence.”  Id., subd. 4a(a)(3).  If the offender has a “change in circumstances” affecting his residence, he is required to report it immediately.  Id., subd. 4a(c).

            This court has held that the predatory-offender registration statute is a civil/regulatory statute that the state lacks jurisdiction to enforce against an enrolled tribal member on an Indian reservation.  State v. Jones, 700 N.W.2d 556, 559 (Minn. App. 2005), review granted (Minn. Oct. 18, 2005).  In Jones, the defendant, also an enrolled member of the Leech Lake Band of Ojibwe, registered his address on the Leech Lake Reservation.  Id. at 558.  But he failed to verify his address, despite several requests to do so, within the statutory period.  Id.  Police then discovered that he “was not living at the address on file with the BCA but rather was living at a different residence on the reservation.”  Id.(emphasis added).

            Here, the state did not claim that appellant was living elsewhere on the reservation.  The state presented evidence that appellant was no longer living at 7355 Beaulieu Circle, and circumstantial evidence that indicated he was living off the reservation.  Police encountered appellant on October 14 in Fosston, in Polk County, which is not on the Leech Lake Reservation, and arrested him on November 2 in Duluth, which is far from the reservation. 

The Cabazon test applied in Jones recognizes that the state may not have authority to enforce its laws against tribal members for conduct occurring on their reservation.  Id. (applying California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S. Ct. 1083 (1987)); see also State v. Stone, 572 N.W.2d 725, 732 (Minn. 1997) (“the state of Minnesota seeks to apply its laws directly to members of the White Earth Band . . . for conduct occurring within the White Earth Reservation”).  But here the state did not seek to penalize anything appellant did at 7355 Beaulieu Circle, or elsewhere on the reservation.  It alleged that appellant was no longer living at 7355 Beaulieu Circle, and, by inference, was living or staying in Duluth, where he was arrested, far from the reservation.  Thus, Jones has no application to this case.

Appellant also argues that the evidence is insufficient to prove that he knowingly violated the statute.  In reviewing the sufficiency of the evidence, this court conducts a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the factfinder to reach the verdict it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  A conviction based entirely on circumstantial evidence merits stricter scrutiny.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  The circumstantial evidence must form a complete chain that leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Id.  The factfinder, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.

            The state presented substantial circumstantial evidence, consisting of law enforcement visits to Beaulieu Circle, the responses and testimony of family members questioned there about appellant’s whereabouts, appellant’s encounter with police in Fosston on October 14, and his arrest in Duluth on November 2, all of which tended to prove that appellant was no longer maintaining his residence at 7355 Beaulieu Circle.   While there was some family testimony to the contrary, appellant’s uncle testified that appellant was only at his house for three or four days, and his cousin testified that he saw appellant come once for his clothes, and then didn’t see him.  The weight and credibility of the conflicting evidence was for the jury to determine.  See State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).  We conclude that the evidence is sufficient to support the conviction.

            Appellant argues that the state was required to prove, as an element of the offense, where appellant’s new primary residence was.  Appellant, however, was not charged with failing to register a new, known primary residence.  The complaint charged him generally with knowingly failing to register.  The jury instructions described the charge as “knowingly violat[ing] any of the requirements to register,” including failure to register a new address, and failure to give written notice “that the person is no longer living or staying at an address.”  Thus, the jury could have found appellant guilty based on his failure to provide notice that he was no longer living at 7355 Beaulieu Circle, without the state having to prove a new primary residence.

            The state presented ample evidence from which the jury could conclude that appellant was no longer living at 7355 Beaulieu Circle and had failed to give notice of that fact.  Appellant was arrested in Duluth more than two weeks after police could not find him at his registered address.  Appellant did not raise a defense that he was homeless.  See State v. Iverson, 664 N.W.2d 346, 353 (Minn. 2003) (holding that predatory-offender registration statute cannot be applied to offender who does not live where mail can be received and where he or she can provide five days’ notice that he or she is going to be there).

            Appellant also argues that the prosecutor committed prejudicial misconduct, and that a prosecution witness gave misleading and prejudicial testimony.  A conviction will be reversed for prosecutorial misconduct only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.  See State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  If the defendant fails to object, he forfeits the right to appellate review, but “if the error is sufficient, [the appellate] court may review.”  Id. (citation omitted).

The prosecution witness testified that he was attempting to verify appellant’s residence when he drove to Beaulieu Circle, and that there was an investigation of appellant at that time.  The record establishes that the attorney general was investigating whether to petition for a civil commitment of appellant as a sexually dangerous person or a sexual psychopathic personality.  And the witness, a deputy sheriff, was “investigating” appellant just by trying to verify his address, which could lead to criminal charges for failure to register.  The witness’s terminology was not substantially misleading and did not impair appellant’s right to a fair trial.

            Appellant also challenges the prosecutor’s use of the terms “predator” and “predatory offender.”  But the stipulation provided that appellant had a duty to register “as a predatory offender,” and there was no objection to the prosecutor’s use of that term.  Therefore, appellant has waived that claim of prosecutorial misconduct. 

            Appellant also argues that the prosecutor committed prejudicial misconduct in referring to his intoxicated state both in Fosston and in Duluth, when he was arrested.  But defense counsel did not object to those references, or to the prosecutor’s use of the evidence in closing argument.  Therefore, this claim is waived.     

            Appellant also argues that the police violated his Fourth Amendment rights when they conducted their investigation at the homes of his relatives.  Appellant did not raise this issue in the district court, and has, therefore, waived the issue.  See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).  But even assuming this issue had been litigated, it appears police had consent to enter the only residence in which appellant had a reasonable expectation of privacy, and did not acquire any evidence by means of the entry anyway.  Thus, there is no evidence to suppress even assuming a Fourth Amendment violation.

            Finally, appellant argues that his sentence should be reduced to a year and a day because he does not have the prior conviction required for the two-year minimum sentence.  See Minn. Stat. § 243.166, subd. 5(c).  The prosecutor conceded that appellant’s 2000 St. Louis County conviction could not be used.  But appellant stipulated that he had the 2002 Beltrami County prior conviction.  Therefore, he has waived any challenge to it on appeal.  See generally State v. Busse, 644 N.W.2d 79, 88 (Minn. 2002) (holding that defendant who stipulated to state’s case under Lothenbach waived appellate challenge to sufficiency of evidence).  By his own stipulation, appellant had the prior conviction required under the statute for the two-year minimum sentence.

            Finally, appellant argues that various amendments to the predatory-offender registration statute have been applied to him in violation of the Ex Post Facto Clause.  The predatory-offender registration statute does not violate ex post facto when applied to offenders who committed their qualifying offenses before the statute was enacted.  State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. July 20, 1995).  Appellant complains that amendments to the statute have been retroactively applied in other prosecutions under the statute, an argument that has no relevance to the validity of his conviction in this case.  He also argues that the amendments have denied him his right to notice of his obligations under the statute.  The statute requires that an offender be notified at sentencing of his duty to register.  Minn. Stat. § 243.166, subd. 2.  But appellant, who has been prosecuted under the statute at least twice before, cites no authority requiring that he be notified of the amendments to the statute.  Appellant has not shown a violation of the Ex Post Facto Clause.

            Affirmed.