State of Minnesota, Respondent, vs. Kevin H. Larson, Appellant.Annotate this Case
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALSA06-623
State of Minnesota,
Kevin H. Larson,
Filed October 16, 2007
Carlton County District Court
File No. CR-05-991
Lori Swanson, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Thomas H. Pertler, Carlton County Attorney, 204 Carlton County Courthouse, P.O. Box 300, Carlton, MN 55718 (for respondent)
John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3097; and
Mark D. Nyvold, Special Assistant Public Defender, 332 Minnesota Street, Suite W1610, St. Paul, MN 55101 (for appellant)
Kevin H. Larson, Carlton County Jail, P.O. Box 530, Carlton, MN 55718 (pro se appellant)
Considered and decided by Kalitowski, Presiding Judge; Worke, Judge; and Ross, Judge.U N P U B L I S H E D O P I N I O N
Kevin Larson appeals from his conviction and sentence for failing to register as a predatory sex offender shortly before his release from prison on a sentence that he was serving for his prior failure to register. Larson challenges various aspects of his jury trial and sentencing. He argues that the evidence is insufficient to support his conviction, that his conviction constitutes double jeopardy, and that the prosecutor committed prejudicial misconduct by mischaracterizing his closing argument. Larson also claims that he did not knowingly and voluntarily waive his right to counsel, that the district court wrongly admitted evidence and refused to give a proper jury instruction, that the court failed to redact a description of his prior criminal-sexual-conduct crime from a trial exhibit, and that it miscalculated his criminal history score and jail credits. Because we find that the state introduced sufficient evidence of Larson's continued refusal to register as a sex offender and we find no merit to his other claims, we affirm.
Larson's duty to register as a predatory sex offender originates from his July 1992 conviction of second-degree criminal sexual conduct, for which he was sentenced to 36 months' imprisonment. See Minn. Stat. § 243.166, subd. 1, 6(a) (1992) (requiring person convicted of criminal sexual conduct to register for ten years as sex offender after release from prison). While in prison on that conviction, Larson refused to sign a predatory-offender registration form before his scheduled release in December 1994. After his probationary release, Larson also received notices from the predatory-offender registration unit of the Bureau of Criminal Apprehension informing him that he must register as a sex offender. He never complied.
A police officer in Morrison County interviewed Larson in July 2003 in an unrelated criminal investigation and, after learning that he was a convicted sex offender, directed him to register. Larson again did not comply. The state charged him with failure to register and failure to register a change of address as a sex offender. A jury found him guilty on both charges in August 2004, and in October, the district court sentenced him to serve one year and one day in prison.
While Larson was imprisoned on the Morrison County convictions, his case worker informed him several times that the law required him to register as a sex offender. The case worker presented him with a predatory-offender change-of-information form to register his new address. Larson continuously refused to complete it or sign it. In addition to his opposition to registering, he asserted that he could not provide an address because he would be homeless upon release. On April 1, 2005, the state charged Larson with violating Minnesota Statutes section 243.166, subdivision 5, by failing to comply with the registration requirements for predatory sex offenders. The criminal complaint alleged that Larson knowingly violated the registration provisions on or about March 22, 2005, and it referenced Larson's refusal to complete the registration form in 1994 and his refusal to complete the change-of-information form in 2005. The Carlton County Sheriff's Department took Larson into custody on his scheduled release date of April 13.
The prosecutor asserted the state's theory of the case was that Larson failed to notify the BCA of a change in his residential address at least five days before his pending release from prison on April 13. The district court allowed the prosecutor to broaden the dates of offense to between February 15 and April 15, 2005. Larson waived his right to counsel before his jury trial began in December 2005, and he sought to proceed pro se with his public defender serving as stand-by counsel. The district court presented Larson with a written petition form to proceed pro se, which Larson reviewed with counsel. After a colloquy, the court granted Larson's petition, appointing his public defender to serve as stand-by counsel.
At the close of evidence, Larson objected that the amended dates of offense included a period after the filing of the complaint, so the prosecutor again amended the dates of offense, this time from February 15 to March 28. The prosecutor contended that Larson had until April 8¾five days before his April 13 release date¾to provide his change-of-address notification. But convicting Larson for failing to change his registered address would be troublesome since Larson had never registered in the first place. When the district court questioned the state's theory, the state modified it by asserting that Larson violated the registration provisions by failing to register.
A jury found Larson guilty of failing to register as a predatory offender. The district court sentenced him to the mandatory minimum term of 24 months, with 16 months to serve in prison and 8 months on supervised release. This appeal follows.
D E C I S I O N
Larson argues that the evidence is insufficient to support his conviction of failure to register as a predatory sex offender. We review claims of insufficiency of the evidence to determine whether a jury could reasonably find the defendant guilty in light of the facts in the record and all legitimate inferences that can be drawn in favor of the conviction from those facts. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). We assume that the jury believed the state's witnesses and disbelieved any contradictory evidence. Id. We review the record only to determine whether the state presented evidence sufficient to lead a reasonable factfinder to conclude that no reasonable doubt of guilt exists. State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).
To convict an offender of knowingly failing to register as a predatory sex offender, the state must prove that (1) the defendant is required to register as a predatory offender, (2) the defendant knowingly violated a registration requirement, including the requirement to register, (3) the time period within which he is required to register has not lapsed, and (4) his failure to register occurred within the time period alleged in the complaint. Minn. Stat. § 243.166, subds. 1(b), 3-6. A person convicted of second-degree criminal sexual conduct must register with his assigned corrections agent or, if none is assigned, with the local law enforcement agency where he resides. Minn. Stat. § 243.166, subd. 3(a) (2004). The offender must provide a signed, written statement indicating his primary residential address, all secondary residential addresses, the addresses of all property owned, leased, or rented in the state, all employment addresses, and identification of all motor vehicles owned or regularly driven. Id., subds. 4(a), 4a(b). The registration information must also include an offender's fingerprint card, current photograph, and signed consent allowing disclosure to law enforcement personnel of treatment facility records. Id., subd. 4(a). The offender must maintain his registration as a predatory sex offender for 10 years after initially registering. Id., subds. 1(a)(1)(iii), 6(a). An offender who knowingly violates any provision of the predatory-sex-offender registration statute commits a felony. Id., subd. 5(a).
Larson contends that he cannot be convicted for his failure to register because his prison case worker asked him to sign a change-of-information form rather than an actual registration form. The argument is not compelling. Larson was not convicted for failing to sign the form presented but for refusing to comply with his duty to register. Larson acknowledges that his case worker repeatedly informed him of his duty to register as a sex offender, but he repeatedly refused to comply with any registration requirement. That a prison official presented him with the wrong form does not establish that the state introduced insufficient evidence of his failure to register. A senior official with the BCA's predatory-offender registration unit testified that Larson had never registered with the BCA, and Larson was reminded at least four times while incarcerated of his duty to register. That Larson continuously refused to provide any required information or otherwise facilitate registration supports his conviction despite the erroneous form.
Larson might have aroused a due process analysis if he had raised the issue and he had actually attempted to comply with the law by completing the erroneous form but the state prosecuted him anyway. But Larson instead indicated to prison officials that he would not register or complete any form, and there was no evidence or argument presented that would have led the jury to find that the prison's error caused Larson's chronic refusal to comply with his registration requirement. Viewing the record in the light most favorable to the conviction, we hold that the state introduced sufficient evidence that Larson knowingly violated the predatory-offender registration statute's provisions by failing to register as a sex offender.
Larson asserts that his current conviction for failing to register is based on the same act of failing to register for which he was convicted in 2004 and that it therefore violates the federal and state constitutional prohibitions against double jeopardy. We review constitutional double-jeopardy claims de novo. State v. Watley, 541 N.W.2d 345, 347 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). Both the United States and Minnesota Constitutions guarantee that a criminal defendant may not be tried more than once for the same crime. See U.S. Const. amend. V (providing that "[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb."); Minn. Const. art. 1, § 7 (providing that "no person shall be put twice in jeopardy of punishment for the same offense"). The federal provision is binding on the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969).
The double-jeopardy prohibition protects criminal defendants from "three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998); see also State v. Fuller, 374 N.W.2d 722, 726-27 (Minn. 1985) (finding federal case law addressing double-jeopardy issues to be persuasive). Larson appears to argue that his current conviction is a second prosecution for the same offense after conviction. Generally, a defendant must show that two separately charged offenses are in law and fact the same offense to establish a violation of double jeopardy. United States v. Bennett, 44 F.3d 1364, 1368 (8th Cir. 1995). To determine whether an offense charged in one criminal action is the same in law and fact as an offense charged in a second action, we look to whether the facts essential to sustain a conviction are the same in both actions. State v. Thompson, 241 Minn. 59, 62-63, 62 N.W.2d 512, 516 (1954). If there is any substantial difference between the essential facts that must be proved to sustain a conviction for the two offenses, the convictions are "free from the taint of double jeopardy." Id. at 63, 62 N.W.2d at 516-17.
Before we undertake this analysis, we must first clarify potentially misleading nomenclature. The state contends that the second prosecution is untainted by double jeopardy because Larson's failure to register constitutes a "continuing offense." Some confusion arises because Minnesota courts have held that being prosecuted for a "continuing offense" does not implicate double jeopardy, while more recent federal cases have explained that prosecuting a "continuing offense" is precisely the sort of evil the Double Jeopardy Clause prohibits. The difference is not in substance, but in semantics.
Minnesota courts have long considered "continuing offenses" to be subject to successive prosecution without triggering double-jeopardy concerns. In 1926 the Minnesota Supreme Court in State v. Wood held that "[t]he offense of nonsupport of wife or children . . . is a continuing one." 168 Minn. 34, 37, 209 N.W. 529, 530 (1926). It therefore found no double-jeopardy prohibition against successive prosecutions for failure to provide child support, reasoning that "[t]he result of the trial . . . did not absolve defendant from the future performance of his duty to support his children." Id., 209 N.W. at 531. Similarly, in 1929 the court addressed repeated failure to provide spousal and child support and held that the prohibition against double jeopardy does not preclude successive prosecutions for a "continuingoffense." State v. Sweet, 179 Minn. 32, 33-34, 228 N.W. 337, 337 (1929) (citing Wood and allowing second prosecution for nonsupport). This court followed in step in 1985 when we decided State v. Erickson, 367 N.W.2d 539, 540 (Minn. App. 1985). We held that because "[n]uisance . . . is a continuingoffense," successive prosecutions survive "claims of doublejeopardy until the nuisance is abated." Id. The state has accurately pointed out that a number of unpublished opinions of this court have followed the same language and logic.
In contrast, federal courts consider successive prosecutions of a "continuing offense" to violate a defendant's constitutional right not to be subjected to double jeopardy. See United States v. Smith, 574 F.2d 308, 311 (5th Cir. 1978) ("Nor can appellant avail himself of the continuing offense' rule.") (citing Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221 (1977)); United States v. Jones, 533 F.2d 1387, 1390-92 (6th Cir. 1976) (holding drug possession to be a continuing course of conduct, punishable only as one offense). At first read, it might seem that Minnesota and federal courts have taken conflicting approaches to double jeopardy. Not so.
We easily reconcile Minnesota's treatment of "continuing offense" with the more-recent federal treatment of the same phrase as it regards double jeopardy because the phrase has a different meaning here. One could say that the term "continuing offense" in Minnesota is somewhat of a misnomer. The Wood and Sweet defendants, for example, did not actually commit a continuing offense, in the literal sense; rather, each essentially twice offended their continuing obligation to support his wife or child. The second offenses were separate and distinct offenses of the same, ongoing duty, requiring separate proof of the offense. See Wood, 168 Minn. at 37, 209 N.W. at 350 ("Defendant's failure to support his children after [the] date [of the second charge] could not have been proved at that [first] trial."). Likewise in Erickson, the defendant was first convicted of maintaining a nuisance because of a littered yard in 1983, and then charged several times in 1984 because he failed to remove the litter. 367 N.W.2d at 540. The offenses in these cases could be separately prosecuted not because the defendants committed a single, continuing offense; they could be separately prosecuted because they separately breached a continuing duty at different intervals. Applying the reasoning of these precedents, we agree with the state that Larson's second conviction is not unconstitutional double jeopardy.
Larson highlights that his two failures leading to the separate convictions are both violations of the same statute and that they rest on the same specific failure to register, differing only in terms of time. He insists, therefore, that a person "can fail to register initially only once" and that his two failures in this case are essentially the "same offense." It is true that we cannot affirm the successive prosecutions merely on the ground that Larson's charges came at different times. "The Double Jeopardy Clause is not such a fragile guarantee that its limitations can be avoided by the simple expedient of dividing a single crime into a series of temporal or spatial units." Sanabria v. United States, 437 U.S. 54, 72, 98 S. Ct. 2170, 2183 (1978) (citation and variation omitted). Instead, whether Larson may be twice prosecuted for refusing to register in 2004 and again in 2005 when he was to be released from prison depends on whether his two refusals constitute two distinct criminal acts rather than two actions that represent different moments in a single continuing offense. See State v. Meland, 616 N.W.2d 757, 759-60 (Minn. App. 2000) (holding a DWI offense is limited in time and place but driving with expired license tabs is a continuous offense recurring each time a driver drives the vehicle on a public highway). And the answer to whether the two refusals are separate acts depends entirely on legislative choice. Toussie v. United States, 397 U.S. 113, 115, 90 S. Ct. 858, 860 (1970) (noting an offense should not be construed as continuing "unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that [the legislature] must assuredly have intended that it be a continuing one").
The purpose of the registration requirement informs our decision. Though its details have been amended, the statute continues to carry its general purpose "to keep law enforcement informed as to a predatory offender's whereabouts." Kaiser v. State, 641 N.W.2d 900, 907 (Minn. 2002). Larson points to the statute and asserts that he might have been prosecuted anew for failure to register only after he is released from prison, contending that a new conviction starts a new registration period only after the person is released from incarceration. But Larson's focus on the general ten-year registration period ignores the statute's clear purpose and the specific duties it imposes. The offender's requirement to advise enforcement authorities by registering his current and updated primary and secondary addresses, property owned or leased, employment addresses, motor vehicle usage and ownership, fingerprints and photograph, and treatment facility information, demonstrates that registration is designed to informand keep informedlaw enforcement authorities concerning the offender's whereabouts at any period within the offender's registration term. Evident from these requirements, any material change in circumstances triggers the offender's duty anew even within the same general ten-year registration period.
The duty to register as a sex offender under section 243.166, subdivision 1(b), is ongoing and fluid with the offender's changing circumstances, requiring current and updated registration information to be provided to the state for the entire period that the offender is obligated to register. See Minn. Stat. § 243.166, subd. 6(a) (2004) (establishing that offender required to register "shall continue to comply with this section until ten years have elapsed since the person initially registered"). If Larson's contrary argument prevails, it might equally be held that a conviction for child neglect bars future prosecution of the same offender for later omissions that demonstrate neglect of the same child. Same statute, same offender, same child, same offense, but different time. The parent's duty to satisfy the child's need for nutrition and shelter continues, however, despite a prior breach, and a sex offender's duty under the statute to inform the state of his whereabouts similarly survives a prior breach. See Erickson, 367 N.W.2d at 540 (holding that serial prosecutions for breach of continuing duty overcomes claim of double jeopardy); see also State v. Goldberg, 819 So. 2d 123, 125 (Ala. Crim. App. 2001) (holding that failing or refusing to register as convicted sex offender intended to be continuing offense). The double-jeopardy doctrine is a bar to repeated prosecutions for the same act or omission, not a constitutional pass allowing an offender to disregard repeatedly an ongoing duty. Given the nature of the statutory registration requirement for predatory offenders, we conclude that Larson's repeated failure to register may be prosecuted separately and successively without offending his right not to be prosecuted twice for the same offense.
Although the state twice charged Larson for failing to register, Larson's failures occurred after separate and distinct incarceration periods. One essential element therefore differs for the two offenses, and they are not the same offense as it regards double jeopardy. See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932) (discussing whether "the same act or transaction constitutes a violation of two distinct statutory provisions"). We hold that the duty to register as a sex offender is a continuous duty such that each failure to register at distinct periods constitutes a separate offense. Twice convicting Larson under the same statute for failure to register therefore did not constitute a double-jeopardy violation.
Larson also similarly asserts that Minnesota Statute § 609.035 bars his conviction because his failure to register constitutes a behavioral incident for which he has already been prosecuted. This court rejected a similar argument in Erickson. 367 N.W.2d at 540. The prohibition in section 609.035 against multiple punishment does not apply here.
Larson also argues that he did not knowingly, intelligently, and voluntarily waive his right to counsel because the district court did not conduct an adequate colloquy establishing his waiver. Both the Sixth Amendment to the United States Constitution and article 1, section 6, of the Minnesota Constitution afford criminal defendants the right to the assistance of counsel. A defendant has a corollary right to self-representation. State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990). The district court must ensure that a criminal defendant who represents himself first voluntarily and intelligently waives the right to counsel. State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990). A waiver may be valid even if not in writing if the surrounding circumstances demonstrate a waiver. In re G.L.H., 614 N.W.2d 718, 723 (Minn. 2000). We will overturn a district court's finding of a valid waiver only if it is clearly erroneous. State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998).
A district court generally should comprehensively examine the defendant's understanding of the charges, possible punishments, mitigating circumstances, and any other factors relevant to whether the defendant comprehends the consequences of a right-to-counsel waiver. Id. at 277. But the circumstances surrounding a defendant's waiver may uphold the waiver as valid even absent a thorough examination. Krejci, 458 N.W.2d at 412-13 (upholding waiver based on circumstances when defendant delayed trial, interacted with judges, discussed case with public defenders, was assisted by stand-by counsel, and refused representation by public defender).
The record supports the finding that Larson's waiver was intelligent and voluntary. Larson acknowledged during the colloquy that he had recently represented himself at his 2004 trial for failing to register, assisted in preparing the appeal of his conviction, conducted legal research about the charge, and discussed the consequences of the conviction with his counsel. He also indicated that he read the complaint, which identified the sentence he faced, and the prosecutor at least twice declared the mandatory minimum term of imprisonment for the offense.
Larson emphasizes alleged shortcomings in the petition form to proceed pro se, which the district court required him to review with counsel before ruling on his motion. The petition form is materially identical with the sample provided in the rules of criminal procedure. See Minn. R. Crim. P. Form 11. Larson's counsel reviewed the petition with him, and the district court discussed the petition in detail with Larson and his counsel before granting it. Consulting with counsel before a waiver raises the presumption that the defendant is sufficiently informed of the benefits of legal assistance and the risks of proceeding without it. Worthy, 583 N.W.2d at 276. Larson also acknowledged the district court's three admonitions that he would be held to the same standard as an attorney, that he would be responsible for any mistakes made on account of his unfamiliarity with the law, and that he likely would be unable to have his public defender reappointed as counsel during the trial if he changed his mind. The district court's colloquy adequately established that Larson knew what he was doing and that his choice was made with open eyes. And at different times throughout the proceedings, the district court warned Larson that he would benefit from representation by his appointed counsel. As in Krejci, "[t]hese explanations, although not given in the context of defendant's waiver . . . provide ample evidence to support a determination that defendant made the waiver knowingly and intelligently." Krejci, 458 N.W.2d at 413. The record demonstrates that Larson understood the consequences of proceeding pro se and that he knowingly, intelligently and voluntarily waived his right to counsel.
Larson also claims that the district court abused its discretion by refusing to instruct the jury that he could not be convicted of failing to register if the jury found that he was homeless, relying on State v. Iverson, 664 N.W.2d 346 (Minn. 2003). A district court has discretion to refuse to give a requested jury instruction. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). We determine whether the omission of a requested jury instruction resulted in error and, if so, whether the error was harmless. State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004). Because Larson was not homeless but rather incarcerated during the offense period alleged in the complaint, the claim of error is unsupported.
The supreme court in Iverson interpreted the registration statute as it existed before amendment in 2005. At that time, the statute did not specifically define registration requirements for homeless persons. The court held that the registration requirement applies only to homeless offenders who live where they can receive mail and can provide five days' notice that they will be there. Iverson, 664 N.W.2d at 353. The court emphasized that a bald assertion that one is homeless will not preclude the duty to register but prompt a factual inquiry into the offender's living situation to determine whether compliance is possible.
The record supports Larson's assertion of potential homelessness after his scheduled release from prison on April 13, but Larson was not homeless during the period that he failed to register, February 15 to March 28, 2005, or at the time the state filed the complaint on April 1. Because Larson could receive mail at the prison and could provide five days' notice that he would be there, he had a duty to register. Larson does not benefit from the homeless-sex-offender loophole, which the legislature closed soon after Iverson exposed it. See 2005 Minn. Laws ch. 136, § 8 (codified as amended at Minn. Stat. § 243.166, subd. 3a (2006)). The homeless provision requires a person who has already left his primary address to register within 24 hours after doing so; it does not include offenders who, like Larson, have become reincarcerated after failing to initially register and for whom the prison address may serve at least to initiate the offender into the registry. We recognize that Larson's jailhouse obligation to register is unique in this setting. Ordinarily, because the procedural trigger to register is the assignment of a corrections agent, a previously incarcerated offender would have already registered as a sexually dangerous person at the end of his term of imprisonment for the offense giving rise to his registration duty. See id, subd. 3 (indicating registration duty triggered upon assignment of corrections agent). So an offender who is returned to prison generally needs only to register his upcoming, postincarceration change of address. Larson, however, having not registered in the first instance, is therefore in a position not specifically discussed by the various registration statutes: incarcerated a second time but unregistered. But nothing in the statutory scheme relieves Larson of his general duty to register. In this unique situation, Larson's ongoing, unmet duty was specifically retriggered as a procedural matter upon the assignment of a corrections agent. And this assignment occurred near the end of his subsequent incarceration. The record indicates that this agent directed Larson to register through the case worker, but to no avail. The district court did not abuse its discretion by refusing to give the requested jury instruction.
Larson next challenges evidentiary decisions. He questions the district court's admission of the allegedly irrelevant change-of-information form that Larson refused to sign. He also asserts that the district court committed plain error by failing to redact a description of his criminal-sexual-conduct offense from the 1994 initial-registration form. We give great deference to the district court's evidentiary rulings, which will not form the basis of reversal unless we find a clear abuse of discretion. State v. Yang, 627 N.W.2d 666, 673 (Minn. App. 2001), review denied (Minn. July 24, 2001). A convicted defendant has the burden on appeal of establishing that the district court abused its discretion by admitting the evidence and that its admission prejudiced him. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).
We are not persuaded by Larson's contention that the change-of-information form lost its relevance once the state changed its theory from failing to give notice of a change of address to failing to register. Evidence is relevant if it tends to make the existence of any material fact more or less probable than it would be without the evidence. Minn. R. Evid. 401. Larson asserted that the form is relevant to the offense for which he was convicted by relying on the form to argue that the jury should not convict him because the state had presented him with only the change-of-information form. We agree that the form had little direct relevance to the actual conviction, but it was relevant based on the state's trial theory and on Larson's defense to it. The district court did not abuse its discretion by admitting the exhibit into evidence.
Larson next contends that the district court erred by failing to redact the portion of the 1994 registration form that contained a description of Larson's criminal-sexual-conduct offense. Larson concedes that he did not object to the form's admission, request redaction, or stipulate that he was required to register. Generally, a defendant who fails to object at trial forfeits the right to challenge the error on appeal. State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002). We may still reverse if the unobjected-to error was plain and affected the defendant's substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). The alleged error must be "so clearly erroneous under applicable law and so prejudicial to the defendant's right to a fair trial, that the defendant's right to a remedy should not be forfeited" because he failed to object. In re Welfare of D.D.R., 713 N.W.2d 891, 899 (Minn. App. 2006). Only after we have found plain error will we assess whether the error must be remedied to ensure the fairness and integrity of the trial. State v. MacLennan, 702 N.W.2d 219, 235 (Minn. 2005).
An error is plain if it is clear or obvious. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). We agree with Larson that the district court erred by failing to redact the description of Larson's 1992 criminal sexual conduct from the registration form. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403. The state introduced a certified copy of Larson's prior conviction for second-degree criminal sexual conduct as evidence that he was required to register. There was no evidentiary value to the potentially prejudicial description of the offense, which involved a minor.
But Larson has failed to show that the brief description on the form so affected his substantial rights that there was a "reasonable possibility that the wrongfully admitted evidence significantly affected the verdict." State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). The properly admitted evidence established without any reasonable doubt that Larson, who was required to register as a predatory offender, did not register. Larson admits that he was obligated to register. There is no evidence that he met that obligation. Knowledge of his conduct in the underlying sex offense, though irrelevant to the registration charge, had no conceivable significant bearing on the jury's guilty verdict.
Larson also complains about another unredacted reference related to his sentence for his criminal-sexual-conduct conviction, which reads, "Court believes regarding prior conviction mandatory minimum not properly applied per Order of 5/22/92." The handwritten, barely legible sentence appears on the second page of a copy of Larson's certified conviction. Larson also failed to object to or request redaction of this reference, and on appeal he has also failed to show that it amounted to plain error substantially affecting his rights. The state introduced the exhibit with no supporting testimony just before it rested its case, and it briefly referred to it during closing argument in support of Larson's duty to register. We see no plausible connection between the challenged reference and the jury's verdict.
Larson asserts that the prosecutor mischaracterized his closing argument during her rebuttal, in which she stated that Larson "doesn't agree with the [predatory-offender registration] law." Larson maintains that the mischaracterization amounted to prejudicial misconduct. We conclude otherwise.
When reviewing a claim of prosecutorial misconduct arising from a closing argument, we first examine the challenged conduct to determine whether any misconduct occurred. State v. Ford, 539 N.W.2d 214, 228 (Minn. 1995). We consider the closing argument as a whole and reject efforts to take certain phrases or remarks out of context and give them undue prominence. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). During his own closing argument, Larson repeatedly stated that he disagreed that simply refusing to sign the change-of-information form violates the law. The prosecutor's short rebuttal opined that Larson does not agree with the law and was a reasonable description of what Larson's closing had implied. It was argument and therefore not misconduct. See State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (noting that prosecutor may specifically argue that particular defense or argument lacks merit and may anticipate defense arguments). The prosecutor engaged in no misconduct by paraphrasing and contesting Larson's argument.
Larson argues that the district court erroneously calculated his criminal-history score from his 2004 Morrison County convictions and miscalculated the amount of jail credit awarded. Larson raises the alleged error for the first time on appeal. We therefore decline to reach its merits. Larson concedes that the claimed error "did not impact the sentence imposed because it was a mandatory two-year term." Although a defendant may challenge an illegal sentence at any time, see State v. Maurstad, 706 N.W.2d 545, 549 (Minn. App. 2005), other unobjected-to errors are waived, see State v. Gutierrez, 667 N.W.2d 426, 433 (Minn. 2003). Even if we agreed with Larson's contention, his sentence is not at issue.
Larson also asserts that the district court's award of only 244 days jail credit was erroneous, based on the offense date of March 22, 2005. Although the district court later granted his pro se request for an additional 38 days of jail credit in October 2006, he now argues that jail credit should have been awarded from the date the state first had probable cause to charge him, which he contends was in January 2005. Larson's claim is moot.
When an appellate court cannot provide effectual relief, an issue is deemed moot and should be dismissed. In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989) reh'g denied (Minn. Aug. 31, 1989); see State v. Shotley, 305 Minn. 384, 389-390, 233 N.W.2d 755, 759 (1975) (deeming defendant's argument to remand to district court for proper sentencing moot because defendant was released from prison before appeal). A defendant is entitled to jail credit for "all time spent in custody in connection with the offense . . . for which sentence is imposed." Minn. R. Crim. P. 27.03, subd. 4(B). Larson may be correct that because he was already in custody on another conviction, he was entitled to jail credit from the time the state acquired probable cause to charge him with the new offense. See State v. Morales, 532 N.W.2d 268, 270 (Minn. App. 1995). But because he is no longer incarcerated, awarding him additional jail credit will be meaningless since he may not bank that credit to apply it to some future offense, which we presume he is not contemplating.
In a pro se supplemental brief, Larson appears to raise four issues. We find them to lack a legal or factual basis.
Larson seems to argue that the predatory-offender registration law is an unconstitutional bill of attainder. We rejected this argument during Larson's appeal from his 2004 convictions, and we see no basis to revisit that decision. Larson also appears to argue that requiring convicted sex offenders to register violates the constitutional prohibition against compulsory self-incrimination. Larson raises this issue for the first time on appeal and it is therefore waived. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).
Larson apparently argues that his sentence violates the rule pronounced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). To the extent that Larson alleges that his sentence for his 1992 criminal-sexual-conduct conviction violates Blakely, the challenge fails because the Blakely rule does not apply retroactively to cases that were final before Blakely's effective date in 2004. State v. Houston, 702 N.W.2d 268, 273-74 (Minn. 2005). To the extent that he argues that his two-year minimum-mandatory sentence based on his prior failure-to-register conviction constitutes an upward departure or violates Blakely, his challenge fails because the rule in Blakely does not apply when a district court imposes a mandatory-minimum sentence that does not require judicial fact-finding. See State v. Barker, 705 N.W.2d 768, 772-73 (Minn. 2005).
Larson lastly appears to argue that he should be permitted to withdraw his 1992 guilty plea to the predicate second-degree criminal-sexual-conduct offense. The conviction for which Larson pleaded guilty is not before us on this direct appeal.