State of Minnesota, Respondent, vs. Christopher Thomas Qualley, Appellant.

State of Minnesota, Respondent, vs. Christopher Thomas Qualley, Appellant. A04-837, Court of Appeals Unpublished, May 3, 2005. This opinion will be unpublished and

may not be cited except as provided by

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

  STATE OF MINNESOTA

IN COURT OF APPEALS

A04-837

 

State of Minnesota,
Respondent,

vs.

Christopher Thomas Qualley,
Appellant.

 

Filed May 3, 2005

Affirmed in part and reversed in part

Peterson, Judge

 

Nicollet County District Court

File No. K6-03-535

 

Mike Hatch, Attorney General, Kimberly R. Parker, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and

 

Michael K. Riley, Nicollet County Attorney, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082 (for respondent)

 

Kenneth R. White, Suite 203, 325 South Broad Street, Mankato, MN  56001 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from convictions of failure of a predatory offender to register primary and secondary addresses, appellant Christopher Thomas Qualley argues that (1) the evidence was insufficient to prove that he had a primary address during the period in question, or that he knew five days in advance where he would be living and receiving his mail; and (2) the evidence failed to establish that Qualley, who was staying with friends, had a "living location" during the period or that he had a secondary residence to disclose.  We affirm the conviction of failure to register a primary address but reverse the conviction of failure to register a secondary address.

FACTS

            A 1995 delinquency adjudication for third-degree criminal sexual conduct subjected appellant Christopher Thomas Qualley to the requirement that he register as a predatory offender under Minn. Stat. § 243.166 (2002).  In 1999, Qualley was convicted of failure to register as a predatory offender.

            In November or December 2002, Qualley began living with his girlfriend, Jenni, Savick, in a mobile home that she owned in Eagle Lake, Minnesota.  In December 2002, Qualley registered a change of his primary address to 49 Country Manor, Eagle Lake, Minnesota.  Savick consented to Qualley living with her and did not require him to pay rent or sign a lease.

            Qualley and Savick had a dysfunctional relationship, resulting in arguments, physical assaults, Qualley leaving overnight or for a few days, and police repeatedly being called to their residence.  Savick testified that, at least twice a week, Qualley would be gone until early morning.  On April 20, 2003, Qualley and Savick argued, and Qualley called his family to come and get him.  Later that day, Qualley returned with members of his family to retrieve some of his belongings.  Savick testified that she believed that she and Qualley would no longer be living together.  On April 21, 2003, Qualley submitted a "CHANGE OF INFORMATION NOTICE" form listing his new primary address as "N/A Transisional [sic] temporarily homeless."

            Within a few days, Qualley and Savick reconciled and discussed moving to Mankato.  They talked to a friend who lived in an apartment in Mankato and were told that they could move into the apartment.  Qualley and Savick spoke to the landlord and made arrangements to move into the apartment on May 1, 2003.  The apartment was located at 348 Wheeler, North Mankato, Minnesota.  Savick testified that they did not have a formal lease and instead were going to live in the apartment until the existing lease expired in July, at which time they planned to find their own place.

            On or before May 1, 2003, Qualley helped Savick move into the apartment at 348 Wheeler and also moved some of his belongings, including furniture and personal items, into the apartment.  Both Qualley and Savick had keys to the apartment.  Savick testified that she and Qualley lived at 348 Wheeler for about a month and that, during that time, Qualley went out and was gone until early morning more than twice a week.

            Savick and Qualley received most of their mail at a post-office box.  Savick testified that they felt uncomfortable about getting mail at 348 Wheeler because five people lived in the building, but they did receive some mail at 348 Wheeler, including something for Qualley from the county or city attorney's office.

            Savick knew that Qualley was required to register as a predatory offender, and the two of them discussed his obligation to register after moving to 348 Wheeler.  Savick testified that, initially, Qualley said he was going to register but then, after the deadline for registering passed, he decided not to register.  Savick recalled Qualley once saying that he had thought of registering as homeless because then he could not get into trouble.

            On the morning of May 20, 2003, Qualley physically assaulted Savick, and she called the police.  Savick testified that later the same day, before Qualley was arrested, he called her and told her not to tell police that he had been living at 348 Wheeler and to just tell police that they were dating and he sometimes stayed overnight.

            Officer Jonathan Moldstad responded to the domestic-assault call.  In a statement to Moldstad, Savick reported that she and Qualley had been living together for a month at 348 Wheeler and had previously lived together in Eagle Lake.  Moldstad did not know that Qualley was subject to the predatory-offender registration requirement.

            On May 23, 2003, Qualley contacted Police Officer Shawn Morgan and asked Morgan to meet him at 348 Wheeler, so he could get his property out of there.  Morgan testified that Qualley referred to 348 Wheeler as his residence or house.

            Following Qualley's domestic-assault arrest, detective Nicole Adams, who is responsible for investigating violations of the predatory-offender registration statute for the North Mankato Police Department, learned from other police officers that Qualley was living in North Mankato and should have been registered.  Adams conducted an investigation of the registration violation, which included interviews with Savick and another person who resided at 348 Wheeler, and concluded that Qualley resided at 348 Wheeler.

Qualley was charged as a predatory offender under Minnesota Stat. § 243.166 (2002), with (1) failure to register primary address by person with previous failure-to-register conviction, (2) failure to register primary address, and (3) failure to register a secondary address.  The case was tried to the district court. 

            Lyle Arnason testified:  He lived at 348 Wheeler when Savick and Qualley began staying there at the beginning of May 2003.  Qualley stayed there for about a month or a month and a half.  Arnason saw Qualley at the apartment one to three times a day but not every day.  Qualley sometimes went out at night without Savick and then returned to 348 Wheeler.  Arnason observed that a closet in the room shared by Savick and Qualley was about half full of men's clothing.

            Qualley denied living at 348 Wheeler and claimed that he was only storing his belongings there.  Qualley admitted that he used the 348 Wheeler address on job applications.  Qualley presented evidence that he stayed at numerous different locations during the period from May 1 until May 20 and testified that he never spent more than two nights in a row with Savick.

The district court found Qualley guilty as charged.  The district court found:

            9.  Between May 1 and May 20, 2003, [Qualley] regularly stayed at 348 Wheeler. . . . 

 

            . . . .

 

            14.  [Qualley] also stayed at other residences after leaving the Eagle Lake residence.  He stayed with Barbara Palmer several times between April 20 and May 20, 2003.  He stayed at his sister's residence.  He stayed with Kenneth Peterson. . . . 

 

            15.  Although [Qualley] had no set schedule as to where he stayed, he stayed at identifiable residential locations where he could have received mail.

 

The district court sentenced Qualley on count one to an executed term of two years in prison under Minn. Stat. § 243.166, subds. 3(b), 5(c), 6(a).  This appeal followed.

D E C I S I O N

            This court applies the same standard of review when reviewing a case tried to the court as when reviewing a jury verdict.  State v. Totimeh, 433 N.W.2d 921, 924 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).  In considering a claim of insufficient evidence, this court's review is limited to 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 fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

            This court must assume that the fact-finder believed the state's witnesses and disbelieved any contrary evidence.  State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994).  We will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

I.

            Qualley argues that the district court's findings are insufficient and that the evidence was insufficient to support his conviction for failure to register a primary address.  "Construction of a criminal statute is a question of law subject to de novo review."  State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002).

Minn. Stat. § 243.166, subd. 3 (2002),[1] states in relevant part:

            (a) A person required to register under this section shall register with the corrections agent as soon as the agent is assigned to the person.  If the person does not have an assigned corrections agent or is unable to locate the assigned corrections agent, the person shall register with the law enforcement agency that has jurisdiction in the area of the person's residence.

 

(b)   At least five days before the person starts living at a new primary address, including living in another state, the person shall give written notice of the new primary living address to the assigned corrections agent or to the law enforcement authority with which the person currently is registered

 

In cases tried without a jury, the district court is required to "make a general finding of guilty [or] not guilty."  Minn. R. Crim. P. 26.01, subd. 2.  The district court "shall in addition specifically find the essential facts in writing on the record. . . .  If the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding."  Id.

"The purpose of written findings is to aid the appellate court in its review of [a] conviction resulting from a nonjury trial."  State v. Scarver, 458 N.W.2d 167, 168 (Minn. App. 1990).  When appellate review is possible without specific findings, and the evidence is sufficient to sustain the conviction, appellate courts may presume findings consistent with the district court's general finding of guilt and uphold the conviction.  See, e.g., State v. Dominguez, 663 N.W.2d 563, 566 (Minn. App. 2003) (rejecting appellant's "narrow focus on the adequacy of the district court's findings . . . [and reviewing] the entire record to determine whether there [was] sufficient evidence to support the conviction"); Totimeh, 433 N.W.2d at 924 (invoking omission provision of rule 26.01 and upholding the convictions because the record contained evidence supporting the convictions).

Qualley argues that presuming a finding violates the constitutional requirement that each element of a crime be proved beyond a reasonable doubt.  But the constitutional requirement applies to the sufficiency of the evidence, not the findings.  Qualley also argues that a remand is appropriate here because the evidence in the record is disputed.  But under our standard of review, the evidence is viewed in the light most favorable to the conviction, so a remand is not required.

Qualley next argues that the record contains no evidence that he knew five days before May 1 that he would be moving to 348 Wheeler.  In State v. Iverson, 664 N.W.2d 346, 353 (Minn. 2003), the supreme court recognized that the reporting statute does not address how homeless offenders can comply with the statute when they do not know what their living situation will be five days later:

[N]ot all homeless people suffer from the same degree of instability in their living situation.  For example, an offender who sleeps one night on a park bench, the next under a bridge, the next at a bus stop, and so on, is in a significantly different position from an offender who lives in a shelter for three weeks or on a couch in a friend's apartment for six months.  The first of these homeless offenders does not enjoy a "living location" to which the statute could apply because he never has five days' notice of where he will be and he cannot receive mail at any of those locations.  The second of these homeless offenders, however, can comply with the statute because each of his "living locations" is such that he can provide sufficient notice of his intent to move there and he can receive mail there.

 

The supreme court interpreted the statute "to limit the residence reporting requirement to locations at which mail can be received and of which the offender can have five days' notice that he will live there."  Id.

Although Qualley is correct that the record does not demonstrate that at least five days before moving items into 348 Wheeler on May 1, he knew that he would be staying at that address, the record does demonstrate that at least by May 1, Qualley had notice that he would be living at 348 Wheeler five days later.  Therefore, like the second category of homeless offenders described in Iverson, Qualley had the ability to comply with the reporting requirement.

Qualley next contends that the district court erred in finding that he could receive mail at 348 Wheeler.  The Iverson court cited people sleeping on a park bench, under a bridge, or at a bus shelter as examples of homeless people who do not have an address where they can receive mail.  Unlike those examples, 348 Wheeler was an address at which persons residing there could receive mail.

Qualley argues that the evidence was insufficient to prove that he was living at 348 Wheeler.  But Savick testified that he was living there, and Qualley acknowledged keeping personal belongings there and using that address on job applications.  There was also testimony that Qualley returned to 348 Wheeler after being out at night without Savick, and both Savick and Qualley represented to police officers that Qualley lived at 348 Wheeler.

The evidence was sufficient to support Qualley's conviction of failure to register a primary address.

II.

Qualley argues that the evidence was insufficient to support his conviction for failure to register a secondary address.  Minn. Stat. § 243.166, subd. 4a(a)(2) (2002), states, "A person required to register under this section shall provide to the corrections agent or law enforcement authority the following information:  . . . the addresses of all the person's secondary residences in Minnesota, including all addresses used for residential or recreational purposes."  Minn. Stat. § 243.166 (2002) does not define "secondary residence."[2]

            The dictionary defines residence as, "1. The place in which one lives; a dwelling.  2. The act or a period of residing in a place."  The American Heritage Dictionary of the English Language (4th ed. 2000).  The dictionary defines reside as, "[t]o live in a place permanently or for an extended period."  Id.  The dictionary definition of residence has a permanency aspect that is consistent with the way the term is used in statutes in other contexts.  See, e.g., Minn. Stat. §§ 216C.27, subd. 2(a) (energy conservation statute defining "residence" as "any dwelling for habitation either seasonally . . . or permanently by one or more persons"), 518.003, subd. 2 (defining residence as "the place where a party has established a permanent home from which the party has no present intention of moving") (2004), Minn. R. 8001.0300, subp.1-2 (2003) (defining resident for purposes of property-tax statute as "any individual person who is domiciled in Minnesota" or "any individual person . . . who is not domiciled in Minnesota, but who maintains a place of abode in Minnesota and spends in the aggregate more than one-half of the taxable year in Minnesota" and domiciled as "the bodily presence of an individual person in a place coupled with an intent to make such a place one's home" or "that place where [the] person's habitation is fixed, without any present intention of removal therefrom, and to which, whenever absent, that person intends to return") see also Black's Law Dictionary 1308 (6th ed. 1990) (defining reside as to "live, dwell, abide, sojourn, stay, remain, lodge . . . [or] have a settled abode for a time").

            Based on the definitions of residence and reside, we conclude that a place where a person stays now and then without any degree of permanency or regularity is not a secondary residence.  The evidence in the record is insufficient to show that Qualley stayed with any degree of permanency or regularity at any place other than 348 Wheeler.  Accordingly, we reverse his conviction for failure to register a secondary address.

            Affirmed in part and reversed in part.

[1] Minn. Stat. § 243.166 (2002) does not define primary residence.  In 2003, the statute was amended to define primary residence as "any place where the person resides longer than 14 days or that is deemed a primary residence by a person's corrections agent, if one is assigned to the person."  2003 Minn. Laws ch. 116, § 2.

 

[2] In 2003, Minn. Stat. § 243.166, subd. 4a(a), was amended to define "secondary residence" as "any place where the person regularly stays overnight when not staying at the person's primary residence, and includes, but is not limited to:  (i) the person's parent's home if the person is a student and stays at the home at times when the person is not staying at school, including during the summer; and (ii) the home of someone with whom the person has a minor child in common where the child's custody is shared."  2003 Minn. Laws ch. 116, § 2.