State of Minnesota v. Kevin Herman Larson

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1085
State of Minnesota,
Respondent,
vs.
Kevin Herman Larson,
Appellant.
Filed September 6, 2016
Affirmed
Kirk, Judge
Rice County District Court
File No. 66-CR-14-653
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney,
Faribault, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; and
Kirk, Judge.
UNPUBLISHED OPINION
KIRK, Judge
Appellant was convicted by a jury of failing to register as a predatory offender.
On appeal, appellant argues that his conviction must be reversed because the state failed
to prove some of the elements of the offense beyond a reasonable doubt, and because
Rice County was not the appropriate venue. We affirm.
FACTS
In 1993, appellant Kevin Herman Larson pleaded guilty to second-degree criminal
sexual conduct and was sentenced to 36 months in prison. As a result of that conviction,
appellant was required to register as a predatory offender for at least ten years. Minn.
Stat. § 243.166, subds. 1, 6 (1992). After appellant was released from prison, he refused
to register as a predatory offender. Appellant was later convicted of failing to register
and imprisoned five times. Appellant’s fifth conviction was reversed. State v. Larson,
No. A13-0485, 2014 WL 502915 (Minn. App. Feb. 10, 2014).
After that conviction was reversed in 2014, appellant was released from the
Faribault Correctional Facility in Rice County, and again refused to register. Appellant
was then charged in Rice County with three counts of failing to register. Only one of the
charges, a violation of Minn. Stat. § 243.166, subd. 5(a) (2012), was submitted to the jury
at trial. Under that statute, appellant faced up to five years in prison for failing to register
his new primary address with law enforcement within 24 hours as required by Minn. Stat.
§ 243.166, subd. 3a(a). The jury found appellant guilty. The parties agree that appellant
is required to register, and appellant does not claim that he attempted to comply with his
registration obligation.
This appeal follows.
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DECISION
I. The state presented sufficient evidence for the jury to find appellant guilty
beyond a reasonable doubt of failure to register as a predatory offender.
When a sufficiency-of-the-evidence claim involves the question of whether the
defendant’s conduct satisfies the statutory definition of an offense, an appellate court is
presented with a question of statutory interpretation that is reviewed de novo. See State
v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013). The primary object of this court is to
interpret and construe laws so as to ascertain and effectuate the intention of the
legislature. Mankato Citizens Tel. Co. v. Comm’r of Taxation, 275 Minn. 107, 111, 145
N.W.2d 313, 317 (1966); Minn. Stat. § 645.16 (2014). When the words of a statute are
clear and free from all ambiguity, this court looks only to its plain language. Owens v.
Water Gremlin Co., 605 N.W.2d 733, 736 (Minn. 2000). “While statutory construction
focuses on the language of the provision at issue, it is sometimes necessary to analyze the
provision in the context of surrounding sections.” Am. Family Ins. Grp. v. Schroedl, 616
N.W.2d 273, 278 (Minn. 2000).
In order to convict an offender of failing to register, the state is required to prove
that: (1) the defendant is required to register as a predatory-offender; (2) the defendant
knowingly violated a registration requirement; (3) the time period within which the
defendant is required to register has not lapsed; and (4) the defendant’s failure to act took
place in the alleged county. Minn. Stat. § 243.166, subds. 1(b), 3-6 (2012); see 10
Minnesota Practice, CRIMJIG 12.100 (2016). Specifically, the registration requirement
at issue here is that appellant left his primary address, without a new primary address, and
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did not notify law enforcement of his whereabouts within 24 hours. Minn. Stat.
§ 243.166, subd. 3a(a).
A. The state presented sufficient evidence that the Faribault Correctional
Facility meets the statutory definition of “primary address.”
The jury was instructed that, in order to convict, it must find beyond a reasonable
doubt that:
the [d]efendant knowingly violated any of the requirements to
register. The requirements to register include that if a person
leaves a primary address, and does not have a new primary
address, the person shall register with the law enforcement
authority that has jurisdiction in the area where the person is
staying within 24 hours of the time the person no longer has a
primary address.
Appellant argues that the state failed to present sufficient evidence for the jury to
reasonably conclude that the Faribault Correctional Facility was appellant’s “primary
address” prior to his release. He contends that the Faribault prison fails to meet the
definition of “primary address” provided in Minn. Stat. § 243.166, subds. 1a(g), (c)
(2012), because subdivision 1a(g) defines “primary address” as the “mailing address of
the person’s dwelling,” and subdivision 1a(c) defines “dwelling” as “the building where
the person lives under a formal or informal agreement to do so.” Essentially, appellant
argues that, because he did not agree to live at the Faribault prison, it cannot be
considered his “primary address.” Appellant also argues that, because Minn. Stat.
§ 243.166, subd. 3a(b) (2012), contains specific language addressing the civil registration
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requirements for offenders being released from a prison, prisons are expressly excluded
from the definition of primary address.1
However, the language of Minn. Stat. § 243.166, subd. 3a(b), indicates that the
legislature intended for prisons to fall under the definition of primary residence. Minn.
Stat. § 243.166, subd. 3a(b), uses the phrase “a person with a primary address of a
correctional facility,” directly referring to a correctional facility as a primary address.
Excluding a correctional facility from the definition of primary residence would not only
be contrary to the legislature’s intent, but it would also be contrary to the primary purpose
of Minn. Stat. § 243.166 (2012) because “the primary purpose of the statute is to create
an offender registry to assist law enforcement with investigations.” Boutin v. LaFleur,
591 N.W.2d 711, 717 (Minn. 1999). If a correctional facility is not a primary address,
then offenders released from prison would not be subject to the same 24-hour
requirement of notifying law enforcement of their new residence as other offenders,
which would place the public at a greater risk and create an absurd result. See State v.
Jedlicka, 747 N.W.2d 580, 584 (Minn. App. 2008) (noting that the purpose of Minn. Stat.
§ 243.166 is to “increase public safety by requiring a specific class of offenders to
provide information to law enforcement authorities to assist in keeping track of them”
(quotation omitted)).
1
Minn. Stat. § 243.166, subd. 3a(b), states, “[n]otwithstanding the time period for
registration in paragraphs (a) and (c), a person with a primary address of a correctional
facility who is scheduled to be released from the facility and who does not have a new
primary address shall register with the law enforcement authority that has jurisdiction in
the area where the person will be staying at least three days before the person is released
from the correctional facility.”
5
We conclude that a correctional facility is in fact a “primary residence” for
purposes of Minn. Stat. § 243.166. There is no dispute that the state established that
appellant was released from the Faribault prison on March 21, 2014, and that he was a
person subject to registration. Because a correctional facility is a primary address under
Minn. Stat. § 243.166, the state established, and the jury reasonably concluded beyond a
reasonable doubt, that on March 21, 2014, appellant left his primary address when he was
released from prison.
B. The state presented sufficient evidence that appellant left a primary
address and failed to register as required.
In considering a claim of insufficient evidence, this court’s review is limited to a
thorough 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). The reviewing court
must assume that “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). The reviewing court
will not disturb the verdict if the jury, acting with due regard for the presumption of
innocence and the requirement of proof beyond a reasonable doubt, could reasonably
conclude the defendant was guilty of the charged offense. Bernhardt v. State, 684
N.W.2d 465, 476-77 (Minn. 2004).
As noted earlier, the jury instructions specified that the jury needed to find beyond
a reasonable doubt that appellant left “a primary address, and [did] not have a new
primary address.” Appellant argues that the state failed to present sufficient evidence for
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the jury to reasonably conclude that he did not have a new primary address when he left
the Faribault prison. Appellant asserts that in order for there to be sufficient evidence to
support his conviction, the state needed to establish that he did not have a new primary
residence to report, or that he was homeless when he left prison.2 Extending appellant’s
argument to its natural conclusion, appellant asserts that so long as he was able to obscure
his location after his release, he was not required to provide that location to law
enforcement under Minn. Stat. § 243.166, subd. 3a(a).
Appellant’s interpretation of Minn. Stat. § 243.166, subd. 3a(a), is incorrect.
Minn. Stat. § 243.166, subd. 3a(a), only requires that the state prove that after leaving his
primary residence, with the intention of no longer residing at the prison, appellant failed
to register his new location within 24 hours. See State v. Nelson, 812 N.W.2d 184, 188
(Minn. App. 2012). Here, there is no dispute that appellant left the Faribault prison with
no intention of returning to reside there. There is also no dispute that appellant refused to
comply with the registration process and failed to provide a new primary address to
authorities. There is no requirement under Minn. Stat. § 243.166, subd. 3a(a), that the
state prove where appellant was staying while out of compliance with his registration
requirement. Viewing the evidence in the light most favorable to the conviction, the state
2
In making this argument, appellant relies on State v. Nelson, 812 N.W.2d 184 (Minn.
App. 2012). In Nelson, a failure-to-register conviction under Minn. Stat. § 243.166,
subd. 3(b), was reversed because the state failed to prove that the appellant had vacated
his registered primary address and relocated to a new primary address. 812 N.W.2d at
189. Minn. Stat. § 243.166, subd. 3(b), requires proof of a new primary address, but the
same requirement does not apply to subdivision 3a(a), which is designed to deal with
circumstances where an offender vacates a primary residence and has no new primary
residence. See id. at 188.
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presented sufficient evidence for the jury to reasonably conclude, beyond a reasonable
doubt, that appellant left his primary address and failed to register.
C. The state presented sufficient evidence that appellant left a primary
residence in Rice County without registering as required.
The jury convicted appellant of failing to register, finding beyond a reasonable
doubt that his failure to act took place in Rice County, Minnesota. Appellant argues that
in order to establish that he failed to register in Rice County, the state was required to
present evidence that he remained in Rice County after his release from Faribault prison.
Appellant argues that Minn. Stat. § 243.166, subd. 3a(a), requires the state to prove that
he remained in Rice County, presumably for more than 24 hours, before he could be
charged with violating this provision.
But appellant was convicted of failing to register, not failing to have a new
primary address. Minn. Stat. § 243.166, subd. 3a(a), requires that the state prove the
offender failed to register, not that the state show where the offender was staying after he
vacated his primary address. Viewing the evidence in the light most favorable to the
conviction, sufficient evidence was presented for the jury to conclude both that appellant
was released in Rice County and that he thereafter failed to register.
By leaving his primary address without providing a new primary address,
appellant presumably became homeless, not “staying” at any particular location, with no
primary address to report. See State v. Iverson, 664 N.W.2d 346, 353 (Minn. 2003)
(holding that registration compliance is required even for homeless offenders). Arguably,
a homeless predatory offender poses a greater risk to the public because of law
8
enforcement’s reduced ability to locate that individual. See State v. Jones, 729 N.W.2d 1,
8 (Minn. 2007). In 2005, Minn. Stat. § 243.166, subd. 3a, was adopted by the legislature
to address the unique challenges homeless offenders present. Minn. Stat. § 243.166,
subd. 3a; see also 2005 Minn. Laws ch. 136, art. 3, § 8 at 942-43 (adding subdivision
3a(a)-(h)).
Although it is not precedential, this court finds its unpublished decision in State v.
Pederson to be persuasive on this point. No. A14-1849, 2015 WL 5089026 (Minn. App.
Aug. 31, 2015), review denied (Minn. Oct. 28, 2015); see Dynamic Air, Inc. v. Bloch, 502
N.W.2d 796, 800 (Minn. App. 1993); Minn. Stat. § 480A.08, subd. 3(c) (2014).
Pederson held that “staying” within a jurisdiction does not require a continuous presence
of 24 hours before the offender is required to notify law enforcement. 2015 WL
5089026, at *3. This court noted in Pederson that interpreting the registration statute to
require a continuous presence for 24 hours would allow the absurd result of a homeless
predatory offender being able to move from jurisdiction to jurisdiction every 23 hours
without ever having to notify law enforcement of the offender’s presence. Id. Because
“some operative event” or “part of the crime” (appellant’s release from prison) occurred
in Rice County, and because appellant could not have instantaneously disappeared from
Rice County upon leaving his primary address, there was sufficient evidence for the jury
to conclude that he violated Minn. Stat. § 243.166, subd. 3a(a). See State v. Simion, 745
N.W.2d 830, 838 (Minn. 2008).
Here, the state presented evidence from which the jury could have reasonably
inferred that appellant left his primary address in Rice County without a new primary
9
address. This triggered the requirement to register under Minn. Stat. § 243.166, subd.
3a(a), as a person without a primary address. Because the state also presented sufficient
evidence that after leaving Faribault prison, appellant did not register with any authority
anywhere, the jury reasonably concluded that appellant violated the registration
requirement in Minn. Stat. § 243.166, subd. 3a(a).
D. The state presented sufficient evidence that appellant knowingly failed
to register.
The jury was instructed that the second element of failing to register “is the
[d]efendant knowingly violated any of the requirements to register.”
Appellant argues that he could not have knowingly violated the requirement to
register within 24 hours of his release because the last caseworker he spoke to before
leaving Faribault prison told him that he had five days to register a new address. He
asserts that in order to knowingly violate a statute, an offender must directly perceive that
his conduct was a violation. See State v. Watkins, 840 N.W.2d 21, 29 (Minn. 2013)
(defining “knowingly,” or “to know,” as “to perceive directly; grasp in mind with clarity
and certainty” in analysis of the Domestic Abuse No Contact Order Statute, as stated in
Minn. Stat. § 629.75, subd. 2(d) (2012)). Appellant argues that the evidence before the
jury was insufficient to convict because it supports the conclusion that he believed he had
five days to register, and therefore made a mistake of law. He argues that, in this
instance, a mistake of law is a valid defense to failing to register and that a jury could not
have reasonably concluded that he knowingly violated the statute.
10
However, the Watkins decision that appellant relies on involved a charge of
violating a domestic abuse no-contact order (DANCO), an offense which requires that the
offender “know” that the DANCO existed. See id. Here, all that was required was that
the state prove beyond a reasonable doubt that appellant knew he failed to register. See
Minn. Stat. § 609.02, subd. 9(2) (2014) (“‘Know’ requires only that the actor believes
that the specified fact exists.”); Minn. Stat. § 243.166, subds. 1(b), 3-6; 10 Minnesota
Practice, CRIMJIG 12.100. Appellant’s claim that he believed he had five days to
register does not change the fact that he was responsible for knowing what his
registration obligation was and for complying with it. State v. King, 257 N.W.2d 693,
697-98 (Minn. 1977) (“All members of an ordered society are presumed either to know
the law or, at least, to have acquainted themselves with those laws that are likely to affect
their usual activities.”). “It is a deeply rooted concept of our jurisprudence that ignorance
of the law is no excuse.” Id. at 697.
The jury was presented with many exhibits and heard testimony regarding many of
the conversations appellant’s caseworkers had with him before his release. The jury saw
evidence that, in 2006, appellant was specifically informed of the 24-hour registration
requirement should he vacate his permanent address. This information was conveyed in
one of the many documents that appellant refused to sign. Appellant was presented with
registration paperwork by a caseworker in 1994, 2006, 2008, 2009, 2010, and 2012. The
state emphasizes that appellant was presented with registration paperwork again prior to
his release from Faribault prison in 2014 and that his caseworker informed him that he
was obligated to update his primary address. Appellant’s caseworker told him that he
11
had to complete his registration paperwork before his release. Appellant refused to sign
or complete the document, but was released nonetheless.
Despite appellant’s caseworker commenting to him that he had five days to
register, appellant was provided with accurate information on numerous occasions
regarding his registration obligation. Appellant was responsible for knowing and
complying with that registration obligation. Viewing the evidence in the light most
favorable to the conviction, a reasonable jury could have reviewed the exhibits and
testimony presented and could have reasonably concluded that one comment from a
caseworker did not negate appellant’s prior knowledge of his registration obligation. A
reasonable jury could have concluded, beyond a reasonable doubt, that appellant was
aware he was out of compliance upon his release from Faribault prison and knowingly
failed to register.
II. Rice County was an appropriate venue for this case.
Appellant rehashes his argument regarding the state’s alleged failure to establish
that he was required to register in Rice County and concludes that Rice County is not the
proper venue for this case. Appellant argues that because the state did not present
evidence that he remained in Rice County after his release from Faribault prison, it failed
to establish that Rice County was the appropriate venue. Appellant relies on Minn. Stat.
§ 243.166, subd. 10(a), to assert that he could not have failed to register in Rice County
unless it is established that he was in Rice County 24 hours after his release from prison.
See Minn. Stat. § 243.166, subd. 10(a) (“A violation of this section may be prosecuted in
any jurisdiction where an offense takes place. However, the prosecutorial agency in the
12
jurisdiction where the person last registered a primary address is initially responsible to
review the case for prosecution.”). Essentially, appellant claims that because he never
registered, Rice County had no default responsibility to investigate, and because he
avoided disclosing his location to law enforcement, the state cannot establish venue.
Appellant correctly asserts that he is entitled to be prosecuted in the county where
his offense occurred. State v. Eibensteiner, 690 N.W.2d 140, 149 (Minn. App. 2004),
review denied (Minn. Mar. 15, 2005); State v. Blooflat, 524 N.W.2d 482, 484 (Minn.
App. 1994). Appellant also correctly asserts that venue is an element that must be proven
beyond a reasonable doubt. State v. Larson, 442 N.W.2d 840, 842 (Minn. App. 1989).3
But Minn. Stat. § 627.01, subds. 1, 2 (2014), provide that venue is proper “in the county
where the offense was committed,” including “any county where any element of the
offense was committed.” Additionally, Minn. Stat. § 243.166, subd. 10(a), requires
prosecution “in any jurisdiction where an offense takes place,” but an offender may be
prosecuted for multiple offenses in any county in which one of the offenses occurred.
Minn. Stat. § 243.166, subd. 10(b).
Because appellant left his primary address in Rice County, remained in Rice
County for some period of time, and thereafter failed to register with any law
enforcement agency within 24 hours, Rice County was an appropriate venue for this
prosecution. See Simion, 745 N.W.2d at 838 (holding that venue is appropriate when
“some operative event” occurred within the jurisdiction).
3
Unrelated to appellant’s appeals.
13
III. Appellant’s pro se arguments lack merit.
Appellant raises the following issues in his pro se supplemental brief: (1) that the
registration requirement violates his Fifth Amendment right to not incriminate himself;
(2) that his criminal sexual conduct conviction does not make him an “offender,” thereby
collaterally attacking his original criminal sexual conduct conviction; (3) that the
registration requirement is akin to civil commitment, which is an unconstitutional
punishment since his sentence for criminal sexual conduct has already been served;
(4) that he was never ordered by the district court to register, therefore he does not have
to register; (5) that the registration requirement is an unconstitutional bill of attainder;
(6) that this most recent prosecution for failing to register triggers double jeopardy; and
(7) that the requirement that he register his address in order to assist law enforcement
with investigations amounts to slavery, in violation of the Thirteenth Amendment, and
that he is owed over $10,000,000 in restitution in order to compensate him for his 24-
hour per day enslavement. Appellant’s pro se claims do not contain sufficient legal
arguments or citation to legal authority and are therefore forfeited. State v. Myhre, 875
N.W.2d 799, 806 (Minn. 2016); State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008); State
v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002). Furthermore, this court has reviewed
appellant’s pro se claims and finds them meritless.
Affirmed.
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