                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1085

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                  Justin Lee Niesen,
                                      Appellant.

                              Filed October 20, 2014
                       Affirmed in part and reversed in part
                               Stoneburner, Judge

                           Kanabec County District Court
                              File No. 33-CR-12-346

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Barbara McFadden, Kanabec County Attorney, Mora, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Chutich, Presiding Judge; Ross, Judge; and

Stoneburner, Judge.




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                         UNPUBLISHED OPINION

STONEBURNER, Judge

       Appellant was charged with two counts of violating predatory-offender address-

registration requirements. He challenges his conviction of count 1, charging violation of

primary-address registration requirements, arguing that because the verdict form cites a

statutory subdivision not cited in the complaint, he was convicted of an uncharged crime.

Alternatively, appellant argues that the evidence is insufficient to support a conviction for

violation of the subdivision stated on the verdict form. Appellant also challenges the

sufficiency of the evidence to support the guilty verdict on count 2, charging violation of

secondary-address registration requirements, although no conviction was entered on this

count. We affirm appellant’s conviction of count 1 because, under the unique facts of

this case, we conclude that (1) the evidence is sufficient to support a finding that

appellant violated a primary-address registration requirement stated in the complaint that

was fully addressed at trial, and (2) reversal is not required for the verdict-form error.

Because the evidence is so plainly insufficient to support a finding that appellant violated

a secondary-address registration requirement, we reverse the guilty verdict on count 2

even though no conviction has been entered on that count.

                                          FACTS

       Viewing the evidence in the light most favorable to the verdict, the record

demonstrates that: (1) on October 24 and 25, 2012, appellant Justin Lee Niesen, who is

required to register as a predatory offender, left three voicemails for his supervising

probation agent stating that he was “gone” and was leaving the state to avoid registration


                                             2
requirements; (2) neither relatives nor residents of Niesen’s registered addresses knew

where Niesen was staying from October 24 through the end of October; (3) Niesen’s

uncle and two acquaintances picked Niesen up at a residence in Brook Park (Pine

County) on October 27 and attempted to return him to his registered primary address in

Mora (Kanabec County), but Niesen jumped out of the vehicle and ran away before the

vehicle reached that address; (4) between October 24 and October 29, Niesen did not

comply with any of the statutory requirements for leaving or changing a registered

primary or secondary address.

       Niesen was subsequently charged with two counts of predatory-offender address-

registration violation under Minn. Stat. § 243.166, subd. 5(a) (2012). Count 1 charged

Niesen with failing to comply with the requirements of Minn. Stat. § 243.166, subds. 3a,

4a(b), because he left his primary address and failed to appropriately inform his

corrections’ agent or law enforcement. Count 2 charged Niesen with failing to provide a

secondary address as required by Minn. Stat. § 243.166, subd. 4a(a)(2) (2012).

       At trial, the district court, the prosecutor, and Niesen’s attorney reviewed the

proposed jury instructions and verdict forms on the record. During the discussion of the

verdict form for count 1, the prosecutor stated, in relevant part:

              In this case the evidence is that he left his primary residence
              and didn’t immediately inform the agent and the law
              enforcement agency like he was supposed to. . . . “[P]roviding
              law enforcement with a primary address,” that’s not what he’s
              charged with. And the jury doesn’t need to find that to find
              that he’s violated count 1.

And Niesen’s counsel stated:



                                              3
                I think how it should read is, “We, the jury, find the defendant
                not guilty of the charge of failure to register as a predatory
                offender.” And end it there. I think that the clause “by
                providing law enforcement with a primary address” . . . just
                needs to go and it’s just guilty or not guilty as to the statute
                title, which is failure to register as a predatory offender.

The prosecutor agreed. The parties did not discuss whether statutory references would be

provided on the verdict forms.

       During the discussion of the jury instruction appropriate for count 1, the district

court questioned the meaning of the last sentence of the proposed instruction: “If the

person leaves a primary address and does not have a new primary address, the person

shall register with [the] law enforcement authority that has jurisdiction where a person is

staying within 24 hours of the time the person no longer has a primary address.”

Niesen’s attorney stated:

                I think that’s kind of what we refer to as the “homeless
                prong” . . . I don’t necessarily think that it’s applicable in this
                case . . . but I hate to excise things from the JIGS, because it
                is the law.1 And if the jury in their infinite wisdom finds that
                there is some utility in having that language in there, I
                certainly don’t want to circumvent that.

The prosecutor then stated that the language comes from the statute: “I believe it’s [3a(a)]

that references the procedures that he’s to follow.” The district court then noted that

Minn. Stat. § 243.166, subd. 3a(a), “is an identical match to that language so we will

leave it in.”



1
  We note that this is a misstatement because the JIGS are not binding. See Rowe v.
Munye, 702 N.W.2d 729, 734 n.1 (Minn. 2005) (noting that JIGS are a guide, not an
exclusive source of substantive law).

                                                4
       Regarding count 1, the district court instructed, in relevant part, that:

              At least five days before a person starts living at a new
              primary address, the person shall give written notice of the
              new primary address to the assigned corrections agent or to
              the law enforcement authority with which the person is
              currently registered. If because of a change in circumstances
              any information previously reported no longer applies, the
              requirement to register includes immediately informing the
              agent or law enforcement authority that the information is no
              longer valid. If the person leaves a primary address and does
              not have a new primary address, the person shall register with
              the law enforcement authority that has jurisdiction in the area
              where the person is staying within 24 hours of the time that
              the person no longer has a primary address, Minnesota Statute
              243.166, Subdivision 4a(a), Subdivision 4a(b), Subdivision
              3a(a), and Subdivision 3(b).

(Emphasis added.)

       But the verdict forms for count 1 referenced only subdivisions 5(a) and 3(b): “We,

the Jury, find the defendant [guilty] [not guilty] of the charge of Failure to Register as a

Predatory Offender in violation of M.S. 243.166, subd. 3(b) and M.S. 243.166, subd.

5(a).”2 The jury returned guilty verdicts on both counts.

       The district court sentenced Niesen to 30 months in prison for count 1. At the

sentencing hearing, the district court described count 1 as “failing to register as a

predatory offender, in violation of Minnesota Statute 243.166.5(a).” The Warrant of

Commitment describes Count 1 as “Predatory Offender – Knowingly Violates

Registration Req. or Intentionally Provides False Information” in violation of

“243.166.5(a).”


2
  The “not guilty” verdict form for count 1 is not in the record, but we assume it mirrored
the language of the “guilty” verdict form.

                                              5
       Niesen appeals, asserting for the first time that the erroneous reference to

subdivision 3(b) on the jury verdict form for count 1 is reversible error and challenging

the sufficiency of the evidence to support either of the jury’s verdicts.

                                       DECISION

I.     Count 1 verdict form

       A.      Waiver

       The state first argues that Niesen has forfeited any objection to the verdict form by

failing to raise the issue in the district court and urges this court to decline to exercise

discretion to review for plain error. See Roby v. State, 547 N.W.2d 354, 357 (Minn.

1996) (stating that appellate courts generally do not decide issues not raised before the

district court). There is some merit to the state’s argument, particularly because Niesen’s

counsel’s final argument implies that counsel was aware of the error on the verdict form

before the close of trial but failed to raise the issue in the district court. But in the interest

of justice we exercise our discretion to address the merits of Niesen’s claim that the error

was plain and affected his substantial right to a fair trial. See Minn. R. Crim. P. 31.02

(“Plain error affecting a substantial right can be considered by the court . . . on appeal

even if it was not brought to the trial court’s attention.”).

       B.      Plain error

       Niesen asserts that the district court committed plain error by allowing the jury to

find him guilty of an uncharged offense. To establish plain error, Niesen must show error

that is plain and that affected his substantial rights. State v. Strommen, 648 N.W.2d 681,

686 (Minn. 2002).


                                                6
       An error is plain if it is “clear or obvious” that the error “contravenes case law, a

rule, or a standard of conduct.” State v. Hollins, 765 N.W.2d 125, 133 (Minn. App.

2009). “It is elementary that one must be tried and convicted only of the accused charge

or a lesser included offense.” State v. Voracek, 353 N.W.2d 219, 220 (Minn. App. 1984).

In this case, count 1 charged Niesen with violating Minn. Stat. § 243.166, subd. 5(a)

(2012), and identified the violated requirements as those contained in Minn. Stat.

§ 243.166, subds. 3a, 4a(b).       Subdivision 3a(a) requires written registration with

appropriate authorities within 24 hours of leaving a primary address without having a

new primary address. Minn. Stat. § 243.166, subd. 3a(a). Subdivision 4a(b) requires

immediate notice when registered information is no longer valid and also requires

registration under the procedures set out in subdivision 3a if a person leaves a primary

address and does not have a new primary address. Minn. Stat. § 243.166, subd. 4a(b).

       Subdivision 3(b) requires that at least five days before a person starts living at a

new primary address, the person shall give written notice of the new primary address to

the appropriate authorities. Minn. Stat. § 243.166, subd. 3(b). The complaint did not

allege that Niesen violated this subdivision, and the prosecutor never argued that Niesen

had a new primary address. Because the state did not charge Niesen with a violation of

subdivision 3(b), the inclusion of this citation on the verdict form is error and, despite

being overlooked by the district court and the parties, the error is plain.

       Even when an error is plain, a defendant bears the “heavy burden” of showing that

the plain error was prejudicial and affected his substantial rights. State v. Burg, 648

N.W.2d 673, 677 (Minn. 2002). A plain error is prejudicial if there is a reasonable


                                              7
likelihood that it significantly affected the jury’s verdict. State v. Young, 710 N.W.2d

272, 280 (Minn. 2006). We conclude that Niesen has not met this burden under the

circumstances of this case.

       Niesen argues that the error deprived him of the ability to present a defense

because he was unaware that he was charged with violating subdivision 3(b). But the

record shows that Niesen did present a defense against a 3(b) violation and this was the

only requirement he addressed in closing argument, telling the jury that there is no

evidence in the record that Niesen “decided five days prior to [the day he left his primary

address] to establish a new primary residence.” Niesen did not argue that the evidence

was insufficient to support a finding of guilty for any other registration requirement.

       Verdict forms are part of the jury instructions, which are reviewed for an abuse of

discretion when viewed in their entirety to determine whether they fairly and adequately

explain the law of the case. State v. Kycia, 665 N.W.2d 539, 542 (Minn. App. 2003). In

this case, Niesen specifically requested that the jury instructions include the substance of

the subdivision 3(b) requirement and identify the offense charged only as “failure to

register as a predatory offender.” He did not object to the reference to subdivision 3(b)

on the verdict form or request citation to other registration requirements.

       The district court did not instruct the jury which statutory citations referred to

which registration requirements, and the order in which it read the statutory citations

implied that subdivision 3(b) contained the registration requirement that is actually

contained in subdivision 3a(a): that a person leaving a primary address without a new

address is required to register within 24 hours of no longer living at the primary address.


                                             8
Under these circumstances, it is not possible to conclude that the jury convicted Niesen of

an uncharged crime despite the error in the statutory citation on the verdict form. The

jury, as invited by both parties, convicted Niesen of violating a registration requirement

and the violation charged in the complaint, to the extent it was identified to the jury by a

statutory reference, was implicitly misidentified to the jury as subdivision 3(b).

       Further, under a plain-error analysis, we will not reverse a jury verdict for plain

error unless we also determine that fairness and the integrity of the judicial proceedings

require us to address the error. State v. Griller, 583 N.W.2d 736, 742 (Minn. 1998)

(concluding that grant of a new trial for an error in jury instructions would be a

miscarriage of justice where defendant was afforded a complete adversarial trial during

which he thoroughly presented his theory of the case and the jury rejected his version of

events). Niesen had a full opportunity to defend against the charge that he violated a

registration requirement, he fully presented his theory of the case, and the jury rejected

his version of the events. Although we exercised our discretion to review Niesen’s plain-

error argument on the merits, we conclude that neither fairness nor the integrity of

judicial proceedings require reversal of Niesen’s conviction of count 1.

II.    Sufficiency of evidence

       “When considering a claim of insufficient evidence, this court conducts a

painstaking analysis of the record to determine whether the evidence, when viewed in a

light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict

that they did.” State v. Nelson, 812 N.W.2d 184, 187 (Minn. App. 2012) (quotation




                                              9
omitted). “We must assume that the jury believed the state’s witnesses and disbelieved

any evidence to the contrary.” Id.

       A.     Count 1

       Niesen argues that the evidence is insufficient to support a conviction of the

uncharged crime of violating Minn. Stat. § 243.166, subd. 3(b). As discussed above,

Niesen has failed to establish that the jury intended to convict him of a violation of

subdivision 3(b), therefore we do not address this argument. To the extent Niesen

challenges the sufficiency of the evidence to support a conviction of the charged crime,

we find no merit in this challenge.

       Niesen erroneously asserts that his conviction of count 1 is based solely on

circumstantial evidence. But the record contains direct evidence in the form of Niesen’s

telephone calls telling his probation agent that he was “gone” and was going somewhere

where the registration requirements do not apply.3 Although the agent testified that he

did not believe Niesen’s statement that he was leaving the State of Minnesota, the agent

plainly believed that Niesen intentionally abandoned his registered primary and

secondary residences, and subsequent investigation supported that belief. There is direct

evidence in the record that Niesen did not report the address or addresses where he was

staying to his probation agent or law enforcement from October 24 through October 29

(and beyond).


3
  “[D]irect evidence, if believed, directly proves the existence of a fact without requiring
any inferences by the fact-finder. Circumstantial evidence, on the other hand, is
‘[e]vidence based on inference and not on personal knowledge or observation.’” State v.
Silvernail, 831 N.W.2d 594, 604 (2013) (Stras, J., concurring in part) (citation omitted).

                                            10
       B.     Count 2

       The state did not argue that Niesen’s challenge to the guilty verdict on count 2 is

not properly before this court and Niesen did not brief the issue of whether lack of

conviction on this count makes appeal of this verdict unnecessary or untimely. We note

that in State v. Ashland, 287 N.W.2d 649, 650 (Minn. 1979), the supreme court

concluded that it “need not decide” a sufficiency-of-evidence challenge to counts for

which no sentence was imposed. Nonetheless, because Niesen’s challenge to this verdict

plainly has merit, we elect to address the issue.

       In count 2, the state charged Niesen with violating Minn. Stat. § 243.166, subd.

5(a), described in the complaint as “knowingly and intentionally fail[ing] to provide a

secondary address as defined in Minn. Stat. 243.166 Subd. 1a(i) and as required by Subd.

4a(a)(2)” in Kanabec County on or about October 24 through 29, 2012. Subdivision

4a(a)(2) requires registration of “all of the person’s secondary addresses in Minnesota,

including all addresses used for residential or recreational purposes.”         Minn. Stat.

§ 243.166, subd. 4a(a)(2). Subdivision 1a(i) defines a secondary address as “the mailing

address of any place where the person regularly or occasionally stays overnight when not

staying at the person’s primary address.” Minn. Stat. § 243.166, subd. 1a(i).

       As in count 1, Niesen’s telephone calls to his probation agent constitute direct

evidence, credited by the jury, that Niesen intended to abandon his registered secondary

address. But there is no evidence in the record that Niesen intended to, or by his conduct

did, establish an additional secondary address.




                                             11
       The state argues that the Brook Park address constitutes a place where Niesen

stayed “occasionally,” but the record shows that Niesen was at that address for, at most,

three nights. “Occasionally” is defined as “[n]ow and then; from time to time.” The

American Heritage Dictionary 1215 (4th ed. 2000). We agree with Niesen that staying at

a location for two or three nights on one occasion does not make that location a place

where the person “regularly or occasionally stays overnight.” Because the state failed to

establish that the Brook Park address, or any other address, is a place where Niesen

stayed overnight “now and then” or “from time to time,” the state failed to establish that

Niesen had an unregistered secondary address.       Because the evidence is insufficient to

support the jury’s verdict on count 2, we reverse that verdict.

       Affirmed in part and reversed in part.




                                             12
