This opinion will be unpublished and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

A06-1014

 

 

State of Minnesota,

Respondent,

 

vs.

 

David Raymond Delapaz,

Appellant.

 

 

Filed July 10, 2007

Affirmed
Randall, Judge

 

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.

U N P U B L I S H E D   O P I N I O N

RANDALL, 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.

F ACTS

             Appellant 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 Moorhead, Minnesota, when he registered with law enforcement on April 27, 2005.  At that time, he indicated that he had no permanent address, but he gave contact addresses, initialed his understanding that he must register all changes of address at least five days prior to moving, and signed the registration form.

             Having 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 Moorhead apartment.  Appellant’s girlfriend testified that appellant regularly stayed in the apartment after he signed the lease.

             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.

D E C I S I O N

             The complaint is a written, signed statement of the essential facts constituting the offense charged.  Minn. R. Crim. P. 2.01.  The charging instrument will not be dismissed for defects in form that do not tend to prejudice the substantial rights of a defendant.  Minn. R. Crim. P. 17.06, subd. 1.  The complaint must “contain[] the elements of the offense intended to be charged, ‘and sufficiently apprise[] the defendant of what he must be prepared to meet.’”  Russell v. United States, 369 U.S. 749, 763, 82 S. Ct. 1038, 1047 (1962), cited in State v. Oman, 265 Minn. 277, 281, 121 N.W.2d 616, 620 (1963).  An objection made after conviction requires that this court determine whether the essential elements were sufficiently alleged and whether the record as a whole shows that the defendant was misled to his prejudice.  State v. Pratt, 277 Minn. 363, ___, 152 N.W.2d 510, 513 (1967).   

             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. 

             At the time of the alleged offense, the predatory-offender registration statute had recently been amended.  See 2005 Minn. Laws ch. 136, art. 3, sec. 8.   Appellant argues that he was convicted of violating a repealed statute and that his conviction therefore must be reversed.

             If 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.  Minn. Stat. § 645.37 (2004).  Here, subdivision 1 of section 243.166, cited in the complaint, was repealed on June 3, and replaced with subdivisions 1a and 1b, containing, respectively, a definitions section and the nearly identical language[1] of repealed subdivision 1 describing who must register.  2005 Minn. Laws ch. 136, art. 3, sec. 8 (noting effective date as day following final enactment); 2005 Minn. Laws ch. 136, art. 18, sec. 16 (showing date signed into law as June 2, 2005).  Subdivision 5, also cited in the complaint, set the criminal penalty for knowingly violating the requirement to register or intentionally providing false information to an agent.  Minn. Stat. § 243.166, subd. 5.  Subdivision 5 was not repealed in 2005.[2]  In short, appellant’s argument regarding repeal lacks merit; he was properly charged for failure to register, and the complaint was not misleading.  

             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.

             District courts are allowed “considerable latitude” in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  “An instruction is in error if it materially misstates the law.  Furthermore, it is settled that the court’s instructions must define the crime charged.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citations omitted). 

             Although 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 (Minn. 1998).  To affect substantial rights, the error must be prejudicial, that is, there must be a “reasonable likelihood” that giving the instruction would have had a significant effect on the verdict.  Id. at 741.  If all three prongs are met, the appellate court must assess whether it should address the error to ensure fairness and the integrity of the judicial proceedings.   Id. at 740.

             On the date of appellant’s offense, it was a crime for appellant to “knowingly violate any of [section 243.166’s] . . . provisions.”  Minn. Stat. § 243.166, subd. 5.  The specific registration provisions required that appellant give five-days notice before he “start[ed] living at a new primary address” and give written notice to law enforcement immediately after he no longer lived or stayed at that address.  Minn. Stat. § 243.166, subd. 3(b).  If appellant had no “primary address,” another provision set out requirements for reporting to law enforcement.  See Minn. Stat. § 243.166, subd. 30.

             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.”[3]  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.[4] Appellant has not shown a material error. [5] 

             The 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 (Minn. 2003).  Iverson construed the pre-2005 registration statute that did not specifically address registration requirements for homeless persons.  At the time of appellant’s alleged violation, a new provision expressly addressed registration requirements for persons with no primary address, superseding Iverson.  See Minn. Stat. § 243.166, subd. 3a.  Appellant has not shown how the Iverson instruction prejudiced him or how the new provision applied to him; he has not shown that he was “homeless” or that he lacked a primary address.  State v. Turnipseed, 297 N.W.2d 308 (Minn. 1980) (stating that it is not error to omit language if evidence would not reasonably support conviction under that language); see also State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004) (stating that erroneous omission of jury instruction is evaluated under harmless-error analysis).  Thus, any error was not material.

             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.      

             Affirmed.