State of Minnesota v. Michael James Larson

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0421, A14-0751
State of Minnesota,
Respondent,
vs.
Michael James Larson,
Appellant.
Filed December 29, 2014
Reversed and remanded
Hooten, Judge
St. Louis County District Court
File No. 69DU-CR-13-3130
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark S. Rubin, St. Louis County Attorney, Jessica J. Fralich, Assistant County Attorney,
Duluth, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Appellant challenges the district court’s order requiring him to register as a
predatory offender, contending that the charged predatory offenses and the three non-
predatory offenses of which he was convicted do not arise from the same set of
circumstances. Because the offenses do not arise from the same set of circumstances, we
reverse the district court’s registration decision.
FACTS
The facts are undisputed. Appellant Michael James Larson was in a romantic
relationship with K.A.S. They had two children together and shared a residence. The
two had a tumultuous relationship. Among other things, K.A.S. told police that Larson
would frequently threaten to burn down their residence “in order to get her to do things
and make her fearful of him.”
According to the complaint, Larson forced K.A.S. to have sex with him while they
were both in the living room at their residence on the morning of July 23, 2013.1 Later
that same day, between 3:06 p.m. and 5:51 p.m., Larson sent a series of 50 text messages
to K.A.S. in which he threatened to set their house on fire if she did not buy him alcohol.
According to the complaint, some of the messages included: “FD will be here in 5,”
“smoking,” “smoking last chance,” and “hurry, foggy looking.” K.A.S. eventually
bought alcohol for Larson in response to these messages. K.A.S. left the residence on
July 24 with the couple’s two children. On July 26, between 3:00 a.m. and 3:16 a.m.,
Larson sent another series of text messages to K.A.S., saying that she was “not taking
[him] seriously” and asking her to “[a]nswer please.” Later that same morning, at 11:47
a.m., Larson sent her a text message saying “Babe, our house is on fire.”
1
According to the complaint, Larson told police the sexual conduct occurred the morning
of July 24, but, on appeal, both parties agree that the alleged sexual conduct took place on
the morning of July 23.
2
The shared residence was set ablaze the morning of July 26. When officers
arrived at the scene and interviewed Larson, he initially denied having intentionally
started the fire. But after a canine trained to detect accelerants alerted to him, Larson told
investigators that he had poured gasoline at the fire’s points of origin and lit the gasoline
with a lighter. Larson contended that he was under the influence of alcohol and morphine
at the time. The residence was a complete loss due to the fire, and nearby property
sustained minor damage as well.
In connection with the fire and preceding events, prosecutors charged Larson with
first-degree arson, third- and fourth-degree criminal sexual conduct, felony stalking,
pattern of stalking conduct, and felony domestic assault. He eventually entered into a
plea agreement in which the state agreed to dismiss the criminal sexual conduct and
domestic assault charges and modify the pattern of stalking conduct charge to felony
stalking; in exchange, Larson agreed to plead guilty to two counts of felony stalking, one
count of first-degree arson, and accept a prison sentence of 100 months. The district
court held a plea hearing on October 30, 2013, at which Larson pleaded guilty to the
arson and stalking charges. At the sentencing hearing, Larson brought a motion to
withdraw his plea. The district court denied Larson’s motion and sentenced him to 18
months’ imprisonment for each stalking conviction and 64 months’ imprisonment for the
arson conviction, with the sentences to run consecutively for the agreed-upon total of 100
months. Larson appealed.
The Department of Corrections later advised all parties that Larson had not been
given notice of his registration requirement, and the district court convened a review
3
hearing to determine whether Larson would be required to register as a predatory
offender. The district court ultimately ordered Larson to register, reasoning that “all of
the charged and convicted offenses were born from the same tactics of intimidation used
by [Larson] towards the same victim,” and that the circumstances were sufficiently linked
to require registration. Larson appealed from the district court’s order, and consolidated
this case with his prior appeal.
DECISION
The only issue raised by Larson in his consolidated appeal is that the district court
erred in ordering him to register as a predatory offender. Although some discrepancies
exist in the record, in their briefs the parties rely largely upon the same set of allegations
drawn from the complaint and plea hearing. Because there is no dispute regarding the
material facts in this case, de novo review is appropriate in applying the registration
statute to the facts. State v. Lopez, 778 N.W.2d 700, 705 (Minn. 2010).
The purpose of section 243.166 is to aid law enforcement investigations through
creation of a predatory offender registry. State v. Ulrich, 829 N.W.2d 429, 430 (Minn.
App. 2013). Persons are required to register as predatory offenders if:
(1) The person was charged with or petitioned for a felony
violation of or attempt to violate . . . any of the following, and
convicted of or adjudicated delinquent for that offense or
another offense arising out of the same set of circumstances:
(iii) criminal sexual conduct under section . . .
609.344; 609.345 . . . .
Minn. Stat. § 243.166, subd. 1b(a)(1)(iii) (2012) (emphasis added). The “same set of
circumstances” provision means that registration is required “where the same general
4
group of facts give rise to both the conviction and the charged predatory offense.” Lopez,
778 N.W.2d at 706.
Larson was charged with third- and fourth-degree criminal sexual conduct in
violation of Minnesota Statutes sections 609.344, subdivision 1(c) (2012) and 609.345,
subdivision 1(c) (2012), both of which are predatory offenses. See Minn. Stat. § 243.166,
subd. 1b(a)(1)(iii). But Larson ultimately pleaded to and was convicted of three other
non-predatory offenses—arson and two counts of stalking. The point of contention
between the parties is whether any of the conviction offenses arise out of the “same set of
circumstances” as the charged criminal sexual conduct. Minn. Stat. § 243.166, subd.
1b(a)(1). In order to evaluate whether any of the offenses arise from the “same set of
circumstances,” we first look at the circumstances “required to establish culpability” for
each conviction, as well as the circumstances underlying the alleged predatory offense.
Lopez, 778 N.W.2d at 706.
To establish culpability for the two stalking convictions, the state would have had
to prove that Larson “kn[ew] or ha[d] reason to know [he] would cause the victim under
the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated”
by “manifest[ing] a purpose or intent to injure the person [or] property . . . of another by
the commission of an unlawful act.” Minn. Stat. § 609.749, subds. 1, 2(1) (2012). The
circumstances established at Larson’s plea hearing supported two instances of stalking.
The first was on July 23, when Larson sent a series of 50 text messages to K.A.S. in less
than three hours in which he threatened to burn their house down if she did not buy him
alcohol. The second instance was three days later, on July 26, when he sent more text
5
messages to K.A.S., including one message telling her that the house was on fire. From
the record, it is clear that the district court was relying only on these events in finding
Larson guilty of stalking. During the plea hearing, the prosecutor asked Larson if the
“threat to burn down the residence” and the “repeated text messages” made him guilty of
the two stalking offenses, with no mention of the criminal sexual conduct allegations by
the parties or the district court.
To convict Larson of first-degree arson, the state would have had to prove that
Larson, “unlawfully by means of fire or explosives, intentionally destroy[ed] or
damage[d] any building that is used as a dwelling at the time the act is committed,
whether the inhabitant is present therein at the time of the act or not.” Minn. Stat.
§ 609.561, subd. 1 (2012). The circumstances establish that sometime on the morning of
July 26, Larson poured gasoline throughout his residence, and started the fire on a couch
downstairs and in a toddler bed upstairs. Potential victims included K.A.S. and their two
children who lived at the residence but were absent at the time of the fire, as well as
nearby neighbors who had dwellings in the vicinity of the fire and others who were either
passing by the house or were called to combat the fire and rescue victims. Again, there
was no indication that the district court relied on the criminal sexual conduct allegations
in taking Larson’s guilty plea to first-degree arson.
Because the alleged circumstances of the criminal sexual conduct charges were
not stated at the plea hearing, they are instead drawn solely from the complaint. K.A.S.
indicated that Larson had sex with her against her will while they were both in the living
room at their shared residence in the early morning hours of July 23. K.A.S. told the
6
police that Larson grabbed her, forced himself on her, and penetrated her vagina and
ejaculated. Larson later confirmed that the two had sex before he left for work in the
morning, and claimed the act was consensual.
We next determine whether the circumstances underlying any of the three
conviction offenses are “sufficiently linked in time, location, people, and events” to the
charged predatory offenses to constitute the “same set of circumstances.” Lopez, 778
N.W.2d at 706. While the offenses “need not be based on identical facts,” the supreme
court has warned that mere “related circumstances” between the predatory charged
offenses and the conviction offenses are insufficient to trigger the registration
requirement. Id. The facts of Lopez are especially instructive here, as it appears to be the
only published decision regarding the registration statute in which the circumstances
underlying a predatory charge and a conviction were not united in time and place. Cf.
Gunderson v. Hvass, 339 F.3d 639, 641, 642–43 (8th Cir. 2003) (providing that assault of
which defendant was convicted occurred simultaneous to charged sexual conduct);
Boutin v. LaFleur, 591 N.W.2d 711, 716 n.4 (Minn. 1999) (holding that offenses arose
out of same set of circumstances when defendant admitted the assault offense was
aggravated by sexual conduct soon after assault).
In Lopez, the defendants were two brothers who twice sold methamphetamine to a
confidential informant. Lopez, 778 N.W.2d at 702. Ten days after the second drug sale,
the brothers allegedly kidnapped the informant and his friend in an attempt to extort
payment of debt remaining from the second sale. Id. The brothers were charged with
aiding and abetting kidnapping and a controlled substance crime, but the kidnapping
7
charges were dismissed by the state and they were convicted of only the controlled
substance offense. Id. at 703. This court2 held that the kidnapping charges arose from
the “same set of circumstances” as the controlled substance offense for purposes of the
registration statute, because the offenses were related by “the prospect of financial gain”
which “drives the trafficking in controlled substances” and connected the offenses as an
“overall, intra-related transaction.” Lopez, 764 N.W.2d at 610; see also State v. Lopez,
No. A08-0100, 2009 WL 749007, at *3–4 (Minn. App. Mar. 24, 2009) (“The same
conduct and motive . . . gave rise to the [offenses].”), rev’d, 778 N.W.2d at 700.
On appeal, the supreme court reversed the registration requirement for the Lopez
brothers. Lopez, 778 N.W.2d at 707. The court held that only a “single common
circumstance,” payment of a drug sale debt, united the offenses. Id. at 706. “No further
circumstances were required to establish culpability for the drug sale, and the stipulated
facts underlying the drug conviction did not mention the alleged kidnapping.” Id. The
differences in time (ten days), location, and people involved in the offenses were
sufficient to preclude registration when the only connection between offenses was “so
tenuous a link as the source of [the] debt” that led to the kidnapping. Id. at 707.
The events in this case have a similar “tenuous” link: Larson’s harassment of
K.A.S. The state argues that Larson’s alleged criminal sexual conduct “was the opening
act of a three-day campaign of fear and intimidation,” echoing the district court’s
conclusion that “all of the charged offenses were born from the same tactics of
2
The Lopez brothers appealed separately to this court, and we affirmed in separate
opinions. Their cases were consolidated on review by the supreme court.
8
intimidation” used by Larson against K.A.S. But these arguments repeat the line of
reasoning rejected in Lopez. As was the case in Lopez, the circumstances required to
establish culpability for any one of Larson’s stalking and arson convictions are wholly
separate from any of the facts underlying the alleged criminal sexual conduct, as
evidenced by the absence of those facts in the plea hearing record. The progression of
events simply does not connect either the stalking or arson conduct to the alleged
criminal sexual conduct. The alleged criminal sexual conduct was completed well before
the stalking began later in the afternoon, and the record provides no indication that the
stalking or arson were connected to or motivated by the alleged criminal sexual conduct.
Likewise, nothing in the complaint provides that Larson used the threat of arson or
stalking in order to perpetrate the alleged sexual assault. While Larson’s general pattern
of intimidation toward K.A.S. may connect the offenses, Lopez instructs us that more
than a common motive is required to meet the “same set of circumstances” test. Id. at
706.
A further examination of the time, location, and people involved show that the
circumstances lack the necessary “overlap” to sufficiently link the offenses. See id.
First, the offenses happened in separate timeframes. The alleged sexual conduct began
and ended at the shared residence on the morning of July 23. Several hours later, at 3:06
p.m., Larson began sending text messages to K.A.S. that were unrelated to the criminal
sexual conduct—he was threatening arson and demanding she buy him alcohol. The
second text message conversation and arson occurred three days later. While this passage
of time is less extensive than the ten days in Lopez, the temporal difference here is much
9
greater than the near-simultaneous conduct that was alleged in Gunderson and Boutin.
Gunderson, 339 F.3d at 641; Boutin, 591 N.W.2d at 714. There is no similar temporal
and causal link between the alleged sexual assault and any of the three convictions in this
case.
Because of the nature of the relationship between Larson and K.A.S., there is
some overlap in location regarding the arson offense. The two shared a home, and it is
logical that the residence would be the site of any alleged criminal sexual conduct as well
as the target of arson. But, neither instance of stalking necessarily took place in the
residence. Larson stalked K.A.S. via text message, and while the record is unclear where
the parties were during those contacts, K.A.S. had left the residence prior to receiving the
second set of text messages. And given the nature of the communication, it is highly
unlikely that they would have both been at the residence during the first exchange of text
messages.
Another circumstance relates the two stalking convictions and the predatory
offenses due to the abusive relationship: K.A.S. was the victim of both the alleged
criminal sexual conduct and the stalking. But that is not true of the arson. One of the
“different circumstances g[iving] rise to the kidnapping charge” in Lopez was the
“slightly different group of people” involved in that offense, as compared to the
controlled substance conviction. Lopez, 778 N.W.2d at 706. Here, as in Lopez, potential
victims of the arson were different and more numerous: K.A.S., the couple’s two
children, nearby neighbors and passersby were all put at risk due to the fire, and fire and
rescue personnel.
10
The Lopez court cautioned that “related circumstances” between offenses are not
sufficient to require registration. Id. The record contains evidence that Larson engaged
in a general pattern of harassment against K.A.S. over the course of their relationship.
But, this related pattern of harassment is insufficient under Lopez to satisfy the
requirement that any of Larson’s convictions of stalking and arson and the alleged sexual
conduct arise out of the “same set of circumstances” and are “sufficiently linked in time,
location, people, and events.” See id. We reverse the district court’s decision requiring
Larson to register as a predatory offender and remand for the district court to modify its
sentencing order accordingly.
Reversed and remanded.
11