In the Matter of the Welfare of: D. A. K., Child. ( 2015 )


Menu:
  •                          This opinion will be unpublished and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
    A14-1887
    In the Matter of the Welfare of: D. A. K., Child.
    Filed June 29, 2015
    Reversed
    Reilly, Judge
    Blue Earth County District Court
    File No. 07-JV-14-836
    Lori Swanson, Attorney General, St. Paul, Minnesota; and
    Patrick R. McDermott, Blue Earth County Attorney, Mankato, Minnesota (for
    respondent)
    Cathryn Middlebrook, Chief Appellate Public Defender, Susan J. Andrews, Assistant
    Public Defender, St. Paul, Minnesota (for appellant D.A.K.)
    Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and
    Reilly, Judge.
    UNPUBLISHED OPINION
    REILLY, Judge
    Appellant D.A.K. challenges the district court’s order requiring him to register as
    a sex offender, arguing that the complaint’s sex-related offenses were dismissed pursuant
    to a plea agreement and did not “arise from the same set of circumstances” as the
    offenses to which appellant pleaded guilty. Because we determine that the district court
    erred, we reverse.
    FACTS
    On March 1, 2014, appellant, who was 15 years old, sold narcotics to a person
    under the age of 18. The minor purchased two clear capsules of what he believed to be
    LSD. On March 7, the minor ingested one of the pills and the minor’s girlfriend, C.M.,
    ingested the other pill. After ingesting the drugs, C.M. began seizing and died. On
    March 11, law enforcement officers executed a search warrant and discovered drugs and
    drug paraphernalia in appellant’s bedroom.         The Minnesota Bureau of Criminal
    Apprehension later confirmed that the capsules contained a controlled substance. The
    state filed a petition charging appellant with one count of a second-degree controlled-
    substance crime in violation of Minn. Stat. § 152.022, subd. 1(5) (2012).
    Following C.M.’s death, numerous other individuals divulged to law enforcement
    officers that they also had purchased drugs from appellant. One individual, A.S., a
    minor, told law enforcement that between December 2013 and February 2014, she
    engaged in oral sex and sexual intercourse with appellant in direct exchange for drugs.
    A.S. stated that, on at least one occasion, appellant video recorded the sex acts. Law
    enforcement officers searched appellant’s cell phone and computer hard drive and found
    pornographic materials, including 15 nude still images of A.S. and one 30-minute video
    of A.S. performing oral sex on appellant.
    The state amended the petition to include 1 count of second-degree controlled-
    substance crime, 16 counts of third-degree controlled-substance crimes, 1 count of fifth-
    degree controlled-substance crime, 1 felony count of using a minor in a sexual
    performance or pornographic work, and 1 felony count of possessing pornography
    2
    involving a minor. The state later filed a second amended petition adding a count of
    third-degree murder in violation of Minn. Stat. § 609.195(b) (2012) for C.M.’s death.
    The district court designated the matter as an extended juvenile jurisdiction
    prosecution pursuant to an agreement between the parties. Appellant entered a plea of
    guilty to one count of murder in the third-degree and two counts of selling controlled
    substances to minors.    The state dismissed the remaining charges in exchange for
    appellant’s guilty plea. As part of the sentence the district court ordered appellant to
    register as a sex offender. Defense counsel objected to the registration requirement. This
    uncontested appeal followed.
    DECISION
    Appellant challenges the district court’s order requiring him to register as a sex
    offender, arguing that registration is unnecessary because the sex-related offenses did not
    arise from the same set of circumstances as the controlled-substance offenses. Whether a
    statute or a provision of the sentencing guidelines has been properly construed is a
    question of law subject to de novo review. State v. Zeimet, 
    696 N.W.2d 791
    , 793 (Minn.
    2005). “The object of statutory interpretation is to determine and effectuate legislative
    intent.” 
    Id. Following the
    discovery of evidence that appellant gave drugs to A.S., a minor, in
    direct exchange for sex and possessed still pornographic photographs and a video of A.S.
    engaged in a sexual performance, the state charged appellant with one felony count of
    using a minor in a sexual performance or pornographic work in violation of Minn. Stat.
    § 617.246, subd. 2 (2012), and one felony count of possessing pornography involving a
    3
    minor in violation of Minn. Stat. § 617.247, subd. 4(a) (2012). Minnesota law mandates
    that an individual “shall register” as a predatory offender if he is
    charged with or petitioned for a violation of . . . using a minor
    in a sexual performance in violation of section 617.246; or
    possessing pornographic work involving a minor in violation
    of section 617.247, and convicted of or adjudicated
    delinquent for that offense or another offense arising out of
    the same set of circumstances.
    Minn. Stat. § 243.166, subd. 1b(a)(2) (2012).
    The district court determined that predatory registration was appropriate even
    though the sex-related offenses were dismissed, stating: “once the charge is made –
    which is what it was in this case, that would cause the registration.” Appellant contests
    this determination on appeal, arguing that the sex offenses did not “arise from the same
    set of circumstances” as the murder and controlled-substance offenses to which he
    entered a guilty plea.
    Appellant relies primarily on State v. Lopez, where the supreme court determined
    that an offender’s controlled-substance conviction did not arise from the same set of
    circumstances as a later-dismissed kidnapping charge, precluding the predatory offender
    registration requirement. 
    778 N.W.2d 700
    , 706-07 (Minn. 2010). Lopez articulated that
    the “same set of circumstances” provision requires registration “where the same general
    group of facts gives rise to both the conviction offense and the charged predatory
    offense.” 
    Id. at 706.
    Thus, while the conviction offense “need not be based on identical
    facts” to the charged crime, the circumstances underlying both offenses must overlap
    with regard to “time, location, persons involved, and basic facts.” 
    Id. The Lopez
    court
    4
    determined that the “same set of circumstances” test was not satisfied where different
    circumstances gave rise to each charge, where charges were based on events that
    occurred ten days apart, in different locations, and involving slightly different groups of
    people. 
    Id. Here, the
    district court did not make specific factual findings that the sex offenses
    arose from the same set of circumstances as the controlled-substances offenses to which
    appellant pleaded guilty.     Instead, the district court’s decision was based on its
    understanding that “once the charge is made . . . [it] would cause the registration.” The
    district court’s statement, without more, ignores the principle expressed in Lopez, that
    registration is not required “in every case where a predatory offense is charged.” 
    Id. at 705.
    Registration is also not required when the predatory offense and the conviction
    offense merely arise from “related circumstances.” 
    Id. at 706.
    Here, appellant was in possession of pornographic materials capturing sexual acts
    by a minor. The photographs and the video document sexual acts by A.S. that occurred
    between December 2013 and February 2014. The third-degree murder charge arose out
    of the death of C.M. on March 10, 2014. The two controlled-substance crimes involve
    the sale of narcotics to A.B. on March 7, and to T.K. in late February 2014, after the
    sexual acts involving A.S. While each of these offenses is related to the sale of an illegal
    substance, they do not arise from the “same set of circumstances,” given the time lapse
    between the events, the different individuals involved, and the “basic facts” of each
    incident.   
    Id. Consequently, we
    conclude that the district court erred by requiring
    appellant to register as a predatory offender where the enumerated sexual offense charges
    5
    did not arise from the same set of circumstances as the charges for which appellant
    entered a plea of guilty.
    Reversed.
    6
    

Document Info

Docket Number: A14-1887

Filed Date: 6/29/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021