State of Minnesota, Respondent, vs. David T. Hobbs, Appellant.

State of Minnesota, Respondent, vs. David T. Hobbs, Appellant. A05-1491, Court of Appeals Unpublished, September 12, 2006.

This opinion will be unpublished and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

A05-1491

 

State of Minnesota,
Respondent,
 
vs.
 
David T. Hobbs,
Appellant.

 

Filed September 12, 2006

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 04022990

 

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

 

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

Bradford Colbert, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Worke, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant asserts that the district court abused its discretion in evidentiary rulings and that the evidence was insufficient to support his conviction of failing to register as a predatory offender.  We affirm.

FACTS

 

            In 1995, appellant David Terrance Hobbs pleaded guilty to criminal sexual conduct in the third degree.  In April 1997, January 2000, and August 2000, Hobbs signed sex offender notification and registration forms, each of which included the following acknowledgement:[1]

I have been notified of my duty to register as a sex offender in accordance with Minn. Stat. section 243.166.  I understand that I must register for a period of ten years from the date that I was initially registered, or until my probation, supervised release, or conditional release period expires, whichever occurs later. . . . I understand that I must register all changes of address at least 5 days prior to changing that address, including moving to another state.  I will make this notification in writing to my current Minnesota or Federal corrections agent, or, if I do not have a corrections agent, I must notify the law enforcement agency in the community in which I reside. . . .

 

I understand that I am legally required to supply the requested data under Minn. Stat. section 243.166, including written response on forms provided, to periodic address verification requests.  I also understand that failure to comply or to provide false information is a gross misdemeanor and any subsequent violation is a felony.

I understand that the information provided will be used for law enforcement purposes, and other purposes established by law.  I also understand that it is a gross misdemeanor to provide false information in the completion of this form and I attest to the accuracy of the information I have provided.

 

            In September  2001, before his release from prison, the Bureau of Criminal Apprehension (BCA) sent Hobbs a form entitled "Offender Prison Notification and Registration Advisory Offender's Duty to Register" (advisory).  This form indicates that the offender must initial each paragraph of the advisory and sign it.  Hobbs's form has a handwritten notation on his signature line that states: "Refused to sign read and explained to him."  The document is signed by Hobbs's case manager, Rhonda R. Schultz.  Attached to the copy of the advisory that was admitted at trial as exhibit 5 is a two-page, undated transmittal/message from Schultz to "BCA Registration" containing the handwritten message:

Mr. Hobbs stated to me that no one had explained the changes in the law to him (from 8-1-2000).  I explained everything to him in detail.  We discussed each in detail and he asked questions.  He still refused to sign the form.

 

The advisory contains the same information that was on the previous forms signed by Hobbs concerning the length of the registration obligation and the requirement that an offender must register all changes of address at least five days before moving, including moving to another state. 

            In October 2002, Hobbs was paroled from prison.  He filled out a change-of-address form indicating that his new address would be 2943 Bryant Avenue and that his parole officer would be John Neumann.  Neumann met with Hobbs two to four times per month while Hobbs was on parole.  In February 2003, under Neumann's supervision, Hobbs filled out a change-of-information notice stating that his primary residence changed from 2943 Bryant Avenue to 418 East 31st Street.  In April 2003, again under Neumann's supervision, Hobbs filled out another change-of-information notice stating that his primary residence changed from 418 East 31st Street to 1406 Newton Avenue North. 

            On June 25, 2003, Hobbs met with Neumann for the last time before termination of Hobbs's parole on July 6, 2003.  Neumann reviewed with Hobbs his obligation to keep the state notified of his address.  Because Hobbs indicated to Neumann that he might move back to Michigan, Neumann gave Hobbs two blank change-of-address forms.      Sometime after his parole ended, on a date not contained in the record, Hobbs moved to Michigan without notifying Minnesota law enforcement of his address change.  On March 22, 2004, law enforcement became aware that Hobbs was not living at 1406 Newton Avenue North.  Hobbs, who returned occasionally to Minnesota even after his move to Michigan, was arrested and charged with "failure to notify of changes in predatory offender registration" under Minn. Stat. § 243.166, subd. 5(a)(c), 4a(a), and 4a(b) (2003), "on or about March 22, 2004."  Before trial, Hobbs moved in limine to prevent the introduction of the advisory with Schultz's attached memo.  The court held that the advisory, with the attached memo, was admissible under the hearsay exception for business records. 

            At trial, a witness testified that she had lived at 1406 Newton Avenue North from August 2003 to July 2004 and that during that time Hobbs did not live there.  Julianne Brunzell, supervisor of the BCA's sex offender registration unit, testified that she is responsible for sex-offender records maintained by the BCA.  She testified about the unit's record-keeping practices and Hobbs's records.  Brunzell testified that the BCA annually sends each registrant a letter that the registrant is to return to the BCA to verify the registrant's current address.  And whenever a registrant moves, the registrant is required to complete a change-of-address form to be provided to a corrections agent or law enforcement.  Brunzell also testified about how registrants' records are maintained by the BCA.  Brunzell identified each of the forms relating to Hobbs, including the advisory he did not sign, and the exhibits were admitted as business records.

Neumann testified that he was Hobbs's parole officer and that he informed Hobbs of his duty to register.  Neumann testified that he helped Hobbs fill out change-of-address forms on two occasions.  Neumann testified that at his last meeting with Hobbs in June 2003, Hobbs indicated that he might move to Michigan, and Neumann gave Hobbs two blank change-of-address forms to help him follow his registration requirements so he "wouldn't get in trouble."  Neumann testified that he informed Hobbs that even if he moved out of the state, Hobbs would still have to follow Minnesota law and inform the BCA of any change of address. 

Hobbs testified that he refused to sign the advisory because even after Schultz explained it, he did not understand it.  Hobbs testified that he told Neumann that he was going to move to his mother's residence in Michigan after his parole expired and that Neumann had his mother's address on a prior form.  Hobbs testified that he did not remember Neumann informing him that he would have to notify law enforcement in Minnesota if he moved out of the state after his parole expired.  Hobbs also testified that he thought that once he was off parole he was "free to do whatever [he] wanted to do" and that he did not have to register if he was not living in Minnesota. 

Hobbs's defense to the charge was that he did not knowingly violate the registration statute.  Counsel for Hobbs told the jury in his opening statement that "the issue in this case is, did [Hobbs] knowingly violate the registration statute[.]"  In closing argument, Hobbs's attorney stated:

[T]he second element is, the Defendant knowingly violated any of the requirements to register.  And part of that we concede as well. . . . He was in violation.  The day he moved out of that house at 1406 Newton Avenue North, . . . and moved to Michigan, he violated the requirements of registration.  And there's no denying that. . . . and we're not trying to deny that.  The question is, . . . did he know that he was violating these provisions[?]"

 

The jury found Hobbs guilty, and he was sentenced to 13 months in prison.  This appeal followed.

D E C I S I O N

 

I.          Standard of review

            In considering a claim of insufficient evidence, this court's review is limited to a careful 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).  Determining the weight and credibility of witness testimony is a matter for the jury.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary."  Id.

"Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  "On appeal, the appellant has the burden of establishing that the trial court abused its discretion [in admitting evidence] and that appellant was thereby prejudiced."  Id. 

II.        Sufficiency of evidence

            Hobbs was charged with failure to register as a sex offender, in violation of Minn. Stat. § 243.166, subds. 5(a)(c), 4a(a), and 4a(b).  Subdivision 5 of the statute is the penalty provision.  Subdivision 4a(a) lists the information that a person required to register must provide to a corrections agent or law-enforcement authority.  Subdivision 4a(b) provides that some of  the required information must be provided within five days of the date that the information becomes applicable, and it provides that, if due to a change of circumstances, information previously reported is no longer correct, the person shall immediately inform the agent or authority that the information is no longer valid.  Hobbs was charged with violating the statute "on or about March 22, 2004," which was the date that law enforcement became aware that Hobbs's registered address was not accurate.

            At trial, Hobbs admitted that he violated the statute by not registering his change of address with the BCA, but argued that he did not knowingly or intentionally violate the statute because he believed that once his parole had terminated he was no longer required to register in Minnesota.  On appeal, Hobbs does not challenge the sufficiency of the evidence to support a determination that he knowingly failed to register.  Rather, Hobbs asserts a new argument that he was not required to register in Minnesota on the specific date of March 22, 2004.  Hobbs asserts that he may have been required to register in Michigan on that date but that he cannot be prosecuted in Minnesota for any failure to register in Michigan. 

            We find no merit in Hobbs's claim that on or about March 22, 2004, he was not required to register in Minnesota.  Hobbs stipulated at trial that he had a continuing obligation to register until October 1, 2012, and admitted that he failed to notify law enforcement in Minnesota when he moved to Michigan.  The date of his move to Michigan is not in the record, but Hobbs's violation of the statute was continuing in nature.  The evidence was sufficient to support the conviction.

            At oral argument before this court, Hobbs argued for the first time that the jury instructions were incorrect.  Because Hobbs did not raise the issue of jury instructions in his brief to this court, his argument is waived.  See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (stating that issues not briefed must be deemed waived on appeal).

III.       Admission of Schultz's notation on advisory

            Hobbs argues that admitting the advisory with Schultz's handwritten note constituted reversible error because there was no foundation for its admission as a business record and its admission violated his right to confront witnesses against him.  Hobbs argues that Schultz's note was made in anticipation of litigation and therefore does not qualify as a business record.  Hearsay statements may be admissible under one of several exceptions to the general rule excluding hearsay, including the business-records exception.  Minn. R. Evid. 802; Minn. R. Evid. 803(6); In re Simon, 662 N.W.2d 155, 160 (Minn. App. 2003).  A document may be admitted as a business record if the custodian of the record or another qualified witness testifies that the records were (1) made by a person with personal knowledge of the matters recorded and a business duty to report accurately or from information transmitted by a person with such knowledge; (2) made at or near the time of the recorded event; (3) kept in the course of a regularly conducted business activity; and (4) made as part of the regular practice of that business activity.  Minn. R. Evid. 803 (6).  "[T]he phrase ‘other qualified witness' should be interpreted broadly and the witness need only understand the system involved."  A & L Coating Specialties Corp. v. Meyers Printing Co., 374 N.W.2d 202, 204 (Minn. App. 1985).  We conclude that although Brunzell was able to provide sufficient foundation for admitting the advisory as a business record, Hobbs is correct in asserting that Brunzell was not able to supply the necessary foundation for admission of the two-page message from Schultz that was attached to the advisory in exhibit 5.       

            Based on the record, it is not possible to determine whether or not this message was prepared for litigation.  In determining whether a document was prepared for litigation, a district court must consider when and by whom the report was made and the purpose of the report.  Nat'l Tea Co., Inc. v. Tyler Refrigeration Co., 339 N.W.2d 59, 62 (Minn. 1983).  There is no evidence in this case about when Schultz wrote the message or why.  The district court abused its discretion in admitting the message attached to the advisory as a business record.

            Whether admission of evidence violates a defendant's rights to confront witnesses is a question of law, which appellate courts review de novo.  Lilly v. Virginia, 527 U.S. 116, 136-37, 119 S. Ct. 1887, 1900 (1999); State v. Burrell, 697 N.W.2d 579, 599 (Minn. 2005).  The Confrontation Clause "bars ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'"  Davis v. Washington, 126 S. Ct. 2266, 2269 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1356 (2004)). 

            It is clear that Hobbs did not have an opportunity to cross-examine Schultz.  It is less clear whether Schultz's message constitutes a testimonial statement excluded by Crawford.  But even if admission of the message was error, we conclude that, under the facts in this case, the error was harmless beyond a reasonable doubt.

            If an evidentiary ruling involves constitutional error, appellate courts must determine whether the error was "harmless ‘beyond a reasonable doubt.'"  State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003).  An error is harmless beyond a reasonable doubt if there is no reasonable possibility that the error may have contributed to the conviction.  Id.  "If the verdict is ‘surely unattributable' to the error, then the error is harmless beyond a reasonable doubt."  Id.at 279 (citation omitted).  In this case, Hobbs testified that Schultz explained the advisory to him but he did not sign it because even after the explanation, he did not understand it.  Additionally, Schultz's conversation with Hobbs occurred in September 2001, almost two years before Hobbs's parole expired.  Neumann testified that on June 25, 2003, just before Hobbs was released from parole on July 6, 2003, Neumann reminded Hobbs of the registration requirement, specifically told him he would need to notify Minnesota law enforcement if he moved to Michigan, and gave him two blank change-of-address forms.  We are satisfied beyond a reasonable doubt that even if the evidence of Schultz's conversation with Hobbs had been omitted, the jury would have reached the same verdict.

IV.       Admission of evidence of prior offenses

            Hobbs also argues that the district court abused its discretion by not allowing him to stipulate to the fact that he was a sex offender in order to avoid evidence of that fact at trial.  A criminal defendant has the right to keep "potentially prejudicial evidence of [a] prior conviction from the jury," even when that conviction is an element of the offense, by stipulating to the prior conviction and removing the issue from the case.  State v. Berkelman, 355 N.W.2d 394, 396-97 (Minn. 1984).  But prior convictions may still be admissible under Minn. R. Evid. 609 to impeach a defendant who testifies.  Id.  In this case, the record reflects that Hobbs's offer to stipulate to his prior convictions was conditioned on the district court ruling that the prior convictions could not be used to impeach him if he testified.

            Evidence of prior convictions punishable by more than one year's imprisonment is admissible if the court determines that the probative value of the evidence outweighs its prejudicial effect. Minn. R. Evid. 609(a).  In determining whether impeachment evidence is admissible, courts must consider (1) the impeachment value of the prior crime; (2) the date of conviction and the defendant's subsequent history; (3) the similarity of the past and charged crimes; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue.  State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).

            Hobbs's counsel argued that the probative value of the prior convictions did not outweigh the prejudicial effect on the jury.  The court ruled that evidence of Hobbs's prior crimes could be used to impeach Hobbs if he testified.  Hobbs does not challenge this ruling on appeal.

            Hobbs's reliance on State v. Wemyss, 696 N.W.2d 802, 808-810 (Minn. App. 2005) rev'd mem. (Minn. Aug 16, 2005)[2], for the proposition that the district court abused its discretion when it allowed references to Wemyss as a "sex offender," is misplaced.  Wemyss did not testify.  In contrast, Hobbs testified, and the district court did not abuse its discretion in holding that the prior convictions were admissible under Jones to impeach Hobbs. 

            Affirmed.

[1] The following quotation is from the August 2000 form.  The April 1997 and January 2000 forms are the same with a few minor grammatical differences.

[2] On remand, this court upheld its prior decision affirming Wemyss's conviction for failing to register.  State v. Wemyss, No. A04-1001, 2006 WL 9518, at *4 (Minn. App. Jan. 3, 2006), review denied (Minn. Mar. 28, 2006).  On remand, this court applied a corrected harmless-error standard for erroneous evidentiary rulings.  Id. at * 1.