State of Minnesota, Respondent, vs. Jesse Howard Garcia, Appellant.

State of Minnesota, Respondent, vs. Jesse Howard Garcia, Appellant. A04-1529, Court of Appeals Unpublished, December 20, 2005.

This opinion will be unpublished and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

A04-1529

 

State of Minnesota,

Respondent,

 

vs.

 

Jesse Howard Garcia,

Appellant.

 

Filed December 20, 2005

Affirmed
Crippen, Judge*

 

Ramsey County District Court

File No. K5-03-3927

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and

 

Michael C. Davis, Special Assistant State Public Defender, 332 Minnesota Street, Suite 1610 West, St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge, Stoneburner, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant challenges his conviction for failing to register as a predatory offender in violation of Minn. Stat. § 243.166, subd. 5 (2002), questioning the sufficiency of the evidence and arguing that the district court erred when it accepted his stipulation to an element of the offense (the requirement to register) without obtaining a waiver of his jury trial rights on the record.  Because the record permits the conviction for failing to provide an address, either primary or secondary, and because the inadequate waiver on an element of the offense was harmless beyond a reasonable doubt, we affirm.  

FACTS

            Appellant Jesse Howard Garcia was released in 1997 after imprisonment for a 1995 crime of third-degree criminal sexual conduct.  Under Minn. Stat. § 243.166 (2002), a person convicted of third-degree criminal sexual conduct is required to maintain registration with law enforcement of his primary and secondary addresses. 

            On May 7, 2003, appellant updated his address by informing law enforcement that his new primary residence was 1934 Stillwater Street in St. Paul.  In September 2003, Kay Sailer, appellant's parole agent, discovered that appellant was not at this address.  Sailer called appellant's cell phone on September 23 to request his whereabouts, but appellant refused to tell her where he was staying.  Sailer again talked with appellant by phone the next day to inform him that a warrant had been issued for his arrest.  Again, appellant refused to tell her where he was living and told her that he would not return to the Stillwater Street residence. 

            Two weeks later, law enforcement officers set up a sting to apprehend appellant.  An officer left appellant a phone message stating that the officer heard appellant was looking for a ride to Texas and disclosing that the officer was going to San Antonio.  In a telephone conversation later in the day, appellant agreed to travel to Texas and told the officer he was staying at 968 Jackson Street in St. Paul.  Appellant was apprehended at that location shortly thereafter, and he had in his possession two duffel bags packed with his clothing and other personal belongings. 

            Appellant was charged with one count of failure of a predatory offender to register his address.  Prior to trial, appellant's counsel requested that appellant be allowed to stipulate that he was required to register and that his requirement to register had not expired, thus keeping any mention of "predatory offender" from the jury.  Appellant was present in the courtroom when the discussion of the stipulations occurred, but he was never questioned on the record as to whether he knew of his right to a jury trial on this element of the offense and wished to waive the right.

The district court accepted the stipulations and informed the jury of appellant's stipulation that between September 20 and October 8, 2003, appellant was required to register his address, that he had acknowledged this duty in and after December 1997, and that the requirement had not lapsed.  The jury found appellant in violation of Minn. Stat. § 243.166, and this appeal followed.

D E C I S I O N

1.

            Appellant argues that there is insufficient evidence to support his conviction.  In considering a sufficiency of the evidence challenge, the reviewing court is "limited to ascertaining whether a jury, giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty based on the facts in the record and any legitimate inferences therefrom."  State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999) (quotation omitted).  A conviction based on circumstantial evidence may stand where the evidence viewed as a whole so directly leads to the accused's guilt that it excludes any other reasonable inference.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  We must "take the evidence in the light most favorable to the state and assume that the jury believed the state's witnesses and disbelieved any contradictory evidence."  State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002).

            Appellant was convicted of violating Minn. Stat. § 243.166, subd. 5 (2002), which creates a felony offense for one who is required to register and knowingly violates the statute or intentionally provides false information to a corrections agent or a law enforcement authority.  Under the statute, a predatory offender is required to notify law enforcement of any "new primary address" at least five days before the offender begins living at the new residence, Minn. Stat. § 243.166, subd. 3(b), and the offender is also required to notify law enforcement of "the addresses of all the person's secondary residences in Minnesota, including all addresses used for residential or recreational purposes" within five days of obtaining such an address.  Minn. Stat. § 243.166, subds. 4a(a)(2), (b).[1]  There is sufficient evidence in the record for the jury to conclude that appellant violated the provision requiring him to inform law enforcement of all secondary residences.   

            The jury heard testimony from appellant's sister that she learned on approximately September 22, 2003, that her brother was no longer living at the residence and that when she spoke with him on the phone he informed her that "he wasn't coming back."  Agent Sailer testified on appellant's refusals to disclose where he was living.  A law enforcement agent testified that she watched over the residence at 1934 Stillwater Avenue, waiting for appellant's return, and that when he did not return, she entered the home looking for evidence of his whereabouts.  Upon entry, she found appellant's bedroom emptied of all clothing and personal belongings.  She also testified that she was told by people in the home that appellant no longer lived there.  Appellant's 11-year-old niece confirmed during her testimony that she told the officers they would not find appellant at the home because he "was in trouble, and that he has not been staying at the house."  The jury also heard testimony of appellant's arrest by an undercover officer 18 days after it was evident he was no longer living at the residence he had last registered.

             This evidence creates a reasonable inference that appellant had a secondary residence beginning on at least September 23, 2003, and that 18 days later he still had not provided his corrections agent or law enforcement officer with that address, despite repeated requests to do so.  Based on the evidence and the reasonable inferences therefrom, the jury could reasonably conclude that appellant knowingly violated the provision of Minn. Stat. § 243.166, subd. 4a, requiring him to register all secondary residences within five days of obtaining such an address.  Contrary to appellant's assertions, these are not circumstances like those of a homeless person who is known to have no residence where mail might be received or about which notice might be given as required by law.  Cf. State v. Iverson, 664 N.W.2d 346 (Minn. 2003) (reversing conviction of homeless person in such circumstances).

2.

            Appellant also argues that he is entitled to a new trial because the district court accepted his stipulation to elements of the charged offense without obtaining a personal waiver of his right to a jury trial either in writing or on the record.  An error of this type does not entitle a criminal defendant to a new trial if the state can establish beyond a reasonable doubt that the error was harmless.  State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (Minn. June 29, 2004).  An error is harmless if the jury's verdict is "surely unattributable to the error."  Id. (quoting State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996)). 

            Here the evidence is overwhelming that the error in accepting the stipulation was harmless.  Appellant was fully and repeatedly present in the courtroom when the stipulation was discussed.  The stipulation was for appellant's strategic benefit of keeping potentially harmful evidence from the jury, and to eliminate any reference that he was a "predatory offender."  Moreover, the jury heard testimony from agent Sailer that appellant filed a change of address update on May 7, 2003, and that she discussed with him at that time the continuing requirement to register his address. 

            Finally, the undisputed public record demonstrates that appellant was convicted of third-degree criminal sexual conduct on November 13, 1995.  See State v. Rewitzer, 617 N.W.2d 407, 411 (Minn. 2000) (providing appellate courts may consider public records as part of the record on appeal).  Under Minn. Stat. § 243.166, subd. 6 (2002), a predatory offender shall continue to register until ten years has elapsed since the person's first registration in connection with the offense.  Appellant's initial registration would have occurred at the earliest shortly after his release from prison in 1997.  Ten years have not elapsed since this date nor from the date of appellant's initial conviction giving rise to his requirement to register.

            Because this record demonstrates that the failure to obtain appellant's personal oral or written waiver before accepting the stipulation to these two elements was harmless beyond a reasonable doubt, appellant is not entitled to a new trial.  

            Affirmed. 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Although the complaint only lists the failure to notify authorities of a change of address as a violation of Minn. Stat. § 243.166, subd. 3(b), the jury was instructed not only of the requirement to update a change of "primary address" under Minn. Stat. § 243.166, subd. 3(b), but also the requirement to register an offender's "secondary residence" under Minn. Stat. § 243.166, subd. 4a.  Appellant's brief does not allege that he was denied due process of law because the complaint did not list subdivision 4a; if appellant had not waived this issue, the complaint's language is sufficient to put him on notice of the charges so that he could present a complete defense.  See State v. Wolf, 605 N.W.2d 381, 384-85 (Minn. 2000) (discussing due process requirements for criminal defendant); State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating issues not briefed are waived), review denied (Minn. Aug. 5, 1997).