                         This opinion will be unpublished and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
                                     A15-0241

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                             Richard William Reynolds, Jr.,
                                      Appellant.

                                Filed January 19, 2016
                                       Reversed
                                   Rodenberg, Judge
                              Dissenting, Schellhas, Judge

                             Kanabec County District Court
                                File No. 33-CR-14-87

Lori Swanson, Attorney General, St. Paul, Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Rodenberg, Presiding Judge; Schellhas, Judge; and

Reilly, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

       On appeal from his conviction for failure to register a new primary address as a

predatory offender, appellant Richard William Reynolds, Jr., argues that the district court
legally erred in convicting him of knowingly violating the predatory-offender-registration

statute despite finding as a fact that appellant believed that his primary address remained

so after a breakup with his then-girlfriend, with whom he resided. We reverse.

                                         FACTS

       Appellant is required to register as a predatory offender for life.1 He successfully

fulfilled his registration requirements from 2004 to 2013. From September 11, 2013 to

January 28, 2014, appellant’s registered primary address was in Grasston (Grasston

residence).2   Appellant’s then-girlfriend, D.M.W., owns the Grasston residence.

Appellant’s registered secondary address at all relevant times was his parents’ residence

in Mora (Mora residence).

       On December 25, 2013, appellant and D.M.W. disputed how they would celebrate

Christmas. D.M.W. told appellant that they would be “done” if he left the Grasston

residence. Appellant left anyway. Appellant called D.M.W. that evening asking if he

could return to the Grasston residence, and she said, “No, we’re done.” Appellant later

returned to the Grasston residence, and D.M.W. again told him that their relationship was

over. Appellant took some of his clothes, and went to stay at the Mora residence. He left

other belongings at the Grasston residence. Because he and D.M.W. had broken up and

reconciled several times earlier, appellant did not notify authorities that he was not

staying at his registered primary address.

1
  The state submitted no brief on appeal, and we determine this appeal on the merits
under Minn. R. Civ. App. P. 142.03. We derive our understanding of the state’s legal
arguments from the district court record.
2
  At all relevant times, appellant provided authorities with accurate street addresses, but
we do not include them because the exact addresses are not at issue in this appeal.

                                             2
       On January 7, 2014, Kanabec County Deputy Justin Frisch investigated

appellant’s compliance with his registration requirement. D.M.W. told Deputy Frisch

that appellant left the Grasston residence on December 25. Deputy Frisch then located

and spoke with appellant at the Mora residence, his secondary address, and confirmed

that appellant had been staying there since December 25. Deputy Frisch testified that

appellant told Deputy Frisch that he would register the Mora residence as his primary

address that same day.3 Appellant testified that he realized in late January 2014 that he

and D.M.W. would not reconcile. He then found and registered a new primary address.

       The state charged appellant with two counts of knowingly failing to register as a

predatory offender in violation of Minn. Stat. § 243.166, subd. 5(a) (2012). The first

count was based on appellant’s failure to register the Mora residence as his primary

address while he stayed there before finding and registering his new primary address.

The second count was based on appellant’s failure to notify law enforcement at least five

days before he left the Grasston residence. Appellant waived his right to a jury trial and

the case was tried to the court.

       Deputy Frisch, D.M.W., appellant, and appellant’s nephew (S.S.) testified at trial.

Although appellant signed multiple forms stating that he understood his registration


3
  It is worth noting that the record reveals an unresolved factual question concerning
whether appellant told Deputy Frisch that he would register the Mora residence as his
primary address when the two spoke on January 10, 2014. Appellant disputed the
deputy’s testimony, and the question was not resolved by the district court in its findings.
The state neither alleged nor argued at the district court that appellant’s crime was his
inaction after January 10. Neither did the state file a brief on appeal. Accordingly, we do
not consider a possible alternative finding of fact that the district court might have made,
but did not make.

                                             3
requirements, he testified that he still considered the Grasston residence his primary

address while he was staying at the Mora residence after December 25. He and D.M.W.

“had broken up in the past and got back together, and that’s what [appellant] was figuring

was going to happen this time too.” S.S. testified that he knew appellant and D.M.W. had

broken up on December 25, but that he was under the impression then that they would

eventually reconcile.   D.M.W. testified that “there was no chance” that she would

reconcile with appellant.

       The district court’s findings of fact after trial are unchallenged on appeal. It found

that appellant “believed the [Grasston] address was his primary address the entire time he

stayed at the Mora residence because he thought he and [D.M.W.] may reconcile.” The

district court nevertheless convicted appellant of count one, reasoning that appellant

knowingly violated the statute because “he left his primary address, no longer had a

primary address, and failed to notify law enforcement of this within 24 hours.” The

district court acquitted appellant of count two, reasoning that appellant “unexpectedly lost

his primary address on Christmas Day” and “could not have given prior notice of being

kicked out.” This appeal followed.

                                     DECISION

       Appellant argues that his conviction must be reversed because the district court

legally erred in concluding that he knowingly violated the registration statute despite

finding as a fact that appellant “believed the [Grasston] address [remained] his primary

address.” Appellant’s arguments turn on interpretation of Minn. Stat. § 243.166, subd.

5(a). “Construction of a criminal statute is a question of law,” which is reviewed de


                                             4
novo. State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002). “A statute must be construed

according to its plain language. If ambiguous, the intent of the legislature controls. A

rule of strict construction applies to penal statutes, and all reasonable doubt concerning

legislative intent should be resolved in favor of the defendant.” Id. (citations omitted).

       When a person required to register as a predatory offender “leaves a primary

address and does not have a new primary address,” the law requires that person to register

with police within 24 hours. Minn. Stat. § 243.166, subd. 3a(a) (2014). The district court

correctly noted that the statute does not require a predatory offender to register every time

he leaves his primary address, but only when he “no longer has a primary address.” Id.

The statute defines “primary address” as “the mailing address of the person’s dwelling.”

Id., subd. 1a(g) (2014). It defines “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.” Id., subd. 1a(i) (2014). A person is guilty of a felony only

when he “knowingly violates any of [the section’s] provisions.” Id., subd. 5(a) (2014).

       The elements of the offense of which appellant was convicted are: (1) appellant is

a person required to register as a predatory offender, (2) appellant knowingly violated the

requirement to register, (3) the time period during which appellant was required to

register had not elapsed, and (4) appellant’s conduct took place on or about December 24

or 25, 2013, in Kanabec County. See id.; 10 Minnesota Practice, CRIMJIG 12.102 (6th

ed. 2015). Appellant contested only the second element, whether he knowingly violated




                                              5
a registration requirement.4 The issue on appeal, therefore, is whether appellant can be

convicted of knowingly violating the law under the facts as found by the district court.

       Minnesota Statutes provide that “‘know’ requires only that the actor believes that

the specified fact exists.” Minn. Stat. § 609.02, subd. 9(2) (2012). “Knowingly” is not

defined in the criminal code.

       Appellant argues that “‘knowingly’ means that [he] must know that his conduct

would violate the statute” and “require[s] [him] to perceive directly that [his] conduct

violated 243.166.” Therefore, appellant argues, his conviction must be reversed, because

the district court found as a fact that he did not know his conduct violated the law, but

instead still considered the Grasston residence his primary address during the relevant

time period because he believed that he and D.M.W. would reconcile.

       In State v. Watkins, 840 N.W.2d 21 (Minn. 2013), the Minnesota Supreme Court

considered the meaning of the term “knowingly violates” in the context of the domestic-

abuse-no-contact-order (DANCO) statute. At the time of the offenses in Watkins, Minn.

Stat. § 629.75, subd. 2(d)(1) provided that it was a felony “if the person knowingly

violates this subdivision: (1) within ten years of the first of two or more previous



4
  The complaint did not recite that appellant had registered the Mora residence as a
secondary address, and alleged a knowing violation of a registration requirement without
specifying whether the charge was premised on appellant having had no primary address
after December 25, or was premised on appellant not having timely registered the Mora
residence as primary. At trial, the state argued that appellant was required to have
registered the Mora residence as primary when it became the place where he was
“currently living.” Regardless of the precise registration requirement the state claims was
violated, Minn. Stat. § 243.166 requires proof that the requirement was knowingly
violated.

                                             6
qualified domestic violence-related offense convictions.” Id. at 29.5 The supreme court

held that “‘knowingly violates’ . . . require[s] the defendant to perceive directly that [his

conduct] violated the DANCO statute.” Watkins, 840 N.W.2d at 29. Accordingly, the

supreme court held that a “reasonable belief that [his conduct] did not violate the

DANCO could negate the mental state of the charged offense.” Id. Distinguishing

between knowledge of the existence of a DANCO order and knowingly violating that

order, the supreme court held that “[t]he question of whether Watkins knowingly violated

the DANCO statute turns on Watkins’ knowledge that his conduct violated the DANCO

at the time of the offense,” which is a question of fact. Id. at 29-30.

       In State v. Gunderson, 812 N.W.2d 156 (Minn. App. 2012), a precursor to

Watkins, we considered the meaning of the term “knowingly violates” in the context of

the harassment-restraining-order (HRO) statute. Under the HRO statute in effect at the

time, misdemeanor criminal liability was imposed when the person knew of the order and

violated it. Minn. Stat. § 609.748, subd. 6(b) (2010). The gross-misdemeanor and felony

sections of the statute required proof of a different mental state, imposing enhanced

criminal liability only when the person knowingly violated the order. Id., subd. 6(c)-(d)

(2010). In Gunderson, we held that “knowingly violates” means “that Gunderson was

aware that [his specific conduct] was prohibited.” Id. at 161. We relied on the plain

meaning of “knowingly” to reach our holding. Id. at 160-61.




5
  After the offenses occurred, the Minnesota legislature amended Minn. Stat. § 629.75,
subd. 2(d)(1), removing the word “knowingly.” 2013 Minn. Laws ch. 47, § 5.

                                              7
       The Minnesota legislature amended the HRO and DANCO statutes effective

August 1, 2013. 2013 Minn. Laws ch. 47, §§ 4, 5. The amended statutes removed

“knowingly” from the gross-misdemeanor and felony sections. Id. Tellingly, the legislature

did not reject the definition of “knowingly” employed by this court in Gunderson and by

the supreme court in Watkins.          Instead, and apparently content with the judicial

interpretation of “knowingly” to define the mens rea requirements of Minnesota criminal

statutes, the legislature removed that mens rea requirement.6 The rule of law in Watkins

and Gunderson, however, gives meaning to the distinction between knowing of the

existence of something (e.g., a registration requirement, DANCO, or HRO) and knowing

that action or inaction in a particular factual circumstance violates a statute.

       Here, the district court found as a fact that appellant “believed the [Grasston]

address was his primary address the entire time he stayed at the Mora residence because

he thought he and [D.M.W.] may reconcile.” Appellant cannot have knowingly failed to

register after a change of primary address where he did not believe his primary address to

have changed. We defer to district court findings of fact, especially those concerning

credibility determinations. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d,



6
  Minnesota appellate courts have historically addressed the criminal code’s imprecise mens
rea requirements and whether and how mens rea attaches to various elements of particular
crimes. See generally Ted Sampsell-Jones, Mens Rea in Minnesota and the Model Penal
Code, 39 Wm. Mitchell L. Rev. 1457 (2013). Professor Sampsell-Jones notes that,
although the drafters of the 1963 Minnesota criminal code “created more straightforward
definitions of common mens rea terms,” the existing code has created confusion in
Minnesota’s mens rea jurisprudence, in part because the code does not distinguish
between the multiple elements of crimes and what mens rea attaches to them. Id. at
1463-69.

                                               8
508 U.S. 366, 113 S. Ct. 2130 (1993). And there is no argument on appeal that the

district court’s findings of fact are unsupported by the record.

       We are mindful of a number of unpublished opinions of this court affirming

convictions under offender-registration statutes in the face of challenges to the

sufficiency of the evidence concerning the mental state of the offender who is required to

register. None of those cases involve the issue with which we are concerned here. This

appeal involves a purely legal issue: Whether a person required to register as a predatory

offender may be lawfully convicted of knowingly violating a registration requirement

where there is an unchallenged finding of fact that the offender believed facts which, if

true, would not require that he notify authorities.

       The district court discussed the registration requirements of § 243.166, subd. 5(a),

and concluded that appellant “is guilty even if he was confused between the statutory

definition of primary address and his understanding of his residence.” The district court

observed that “[i]t is not a defense if a person does not know what words or terms in a

statute mean.”7 But this is not a case where appellant argues that his mistake of law

absolves him of responsibility. The statute requires proof that appellant “perceive[d]

directly” that his conduct violated the statute. See Watkins, 840 N.W.2d at 29. And the



7
  The state’s argument to the district court relied on the “perceives directly” standard.
The state did not argue to the district court that appellant was guilty if he “knew or should
have known” of the registration requirement. Instead, the state plainly argued below that
appellant believed the Grasston residence was no longer his primary address and that he
knew he had to register a new address during the relevant period. But the district court, in
finding as a fact that appellant believed that the Grasston residence was still his primary
address, rejected the state’s argument.

                                              9
district court found no such thing. The district court found as a fact that appellant

believed that the Grasston residence was his primary address at all relevant times.

       We defer to the district court’s unchallenged finding of fact that appellant believed

the Grasston residence was his primary address during the time he was temporarily

residing at the Mora residence. That finding of fact supports no legal conclusion other

than that appellant did not knowingly violate the statute. And this is not a situation where

appellant left his primary address to stay at an unregistered address, making it difficult

for law enforcement to find him. Deputy Frisch found appellant staying at his registered

secondary address.

       Because appellant “believed the [Grasston] address was his primary address the

entire time he stayed at the Mora residence,” he did not knowingly violate a registration

requirement.

       Reversed.




                                            10
SCHELLHAS, Judge (dissenting)

       I respectfully disagree with the majority’s reversal of Reynolds’s conviction on the

basis that Reynolds did not knowingly violate the predatory-offender registration statute.

       The district court issued detailed findings of fact, conclusions of law, and an order

following Reynolds’s bench trial. Regarding Reynolds’s knowledge of his obligations

under the predatory-offender registration statute and his state of mind, the court found

that

                     1. . . . Reynolds . . . stipulate[d] and agree[d] that
              between December 24, 2013 and January 17, 2014 he was
              required to register with the State as a predatory offender
              under Minnesota Statutes section 243.166. . . .

                     2. . . . [Reynolds] moved in with [D.M.W.] at [her]
              [Grasston] residence on September 9, 2013. . . . [Reynolds]
              registered the [Grasston] residence as his primary address as
              he was required to do.

                     3. . . . On December 25, 2013 . . . , [D.M.W.]
              threatened to end their relationship if [Reynolds] left the
              home. [Reynolds] nevertheless left to go to his parents’ home.
              He called [D.M.W.] around 8:00 p.m. to ask if he could
              return. [D.M.W.] told him he could not. [Reynolds] showed
              up at the home anyway, but [D.M.W.] insisted their
              relationship was over. [D.M.W.] allowed [Reynolds] to gather
              some personal belongings before he left her home. According
              to [D.M.W.] she never told [Reynolds] they could try to work
              things out at a later date.

                     4. [Reynolds] confirmed at trial . . . that [D.M.W.]
              refused to allow him back into her home [after he left on
              December 25, 2013]. After collecting a few belongings,
              [Reynolds] returned to his parents’ home to stay that night.
              [Reynolds] had previously registered their residence as a
              secondary address, as he was required to do.



                                           D-1
       5. [Reynolds] testified that he still considered the
[Grasston] residence his primary address on December 25,
2013 even though [D.M.W.] had ended their relationship and
kicked him out. He remembered that they had broken up in
the past but later reconciled. [Reynolds] believed this would
happen again. [D.M.W.] testified that she had asked him
before he left on Christmas Day to return the next day to pick
up the rest of his belongings. He did not do so. [Reynolds]
instead came several days later to retrieve his woodstove,
various tools, a toolbox, and other personal items. At no point
during this visit did he and [D.M.W.] discuss getting back
together.

       ....

       7. [Reynolds] claims he tried to talk with [D.M.W.]
several times after December 25, 2013. She declined at first
but then sometime shortly after New Year’s Day began
talking with him more and more. [Reynolds] admits that
[D.M.W.] told him she did not wish to reconcile, however.
[Reynolds] stayed at his parents’ home at the Mora residence
during this entire period.

       8. On January 7, 2014 Kanabec County Deputy Justin
Frisch received an anonymous phone call from someone who
said that [Reynolds] was not residing at his primary address.
Deputy Frisch confirmed that [Reynolds] had to register and
the [Grasston] residence was registered as his primary
address. [Deputy Frisch] reported to the [Grasston] residence
to speak with [Reynolds]. The residents there told the officer
that [Reynolds] had left on Christmas Day. They said
[Reynolds] had only returned once since then to retrieve some
of his belongings. Deputy Frisch then went to the Mora
residence on January 10, 2014. He spoke with [Reynolds]
there. [Reynolds] admitted he last lived at the [Grasston]
residence on December 25, 2013. . . .

       9. At some point in late January 2014, [Reynolds]
realized he and [D.M.W.] were not going to reconcile this
time. He found a new place to live, left his parents’ Mora
residence, and registered his new residence as his new
primary address. [Reynolds] never registered the Mora
residence as his primary address. He believed he did not need

                             D-2
              to do so because he had already registered it as his secondary
              address. In fact, he believed the [Grasston] address was his
              primary address the entire time he stayed at the Mora
              residence because he thought he and [D.M.W.] may
              reconcile.

                     ....

                      11. The Court . . . received as Exhibit 5 a separate
              packet of registration documents. The first form is a
              December 24, 2007 cover letter addressed to [Reynolds] that
              informs him about his need to register and provides him an
              Address Verification Form. The packet also contains a form
              entitled Duty to Register that has 28 numbered paragraphs on
              two pages. [Reynolds] initialed next to each paragraph,
              indicating that [Reynolds] has read and understood each one.
              Paragraph 14 states, “I understand that if I do not have a
              primary address I must report to the law enforcement
              authority with jurisdiction in the area where I will be staying
              within 24 hours of leaving my former primary address.”

       The district court also included findings in its conclusions of law. We treat these

“conclusions of law” as findings of fact. See Graphic Arts Educ. Found., Inc. v. State,

240 Minn. 143, 145−46, 59 N.W.2d 841, 844 (1953) (“[A] fact found by the court,

although expressed as a conclusion of law, will be treated upon appeal as a finding of

fact.”); see also Bissell v. Bissell, 291 Minn. 348, 351 n.1, 191 N.W.2d 425, 427 n.1

(1971) (quoting Graphic Arts, 240 Minn. at 145−46, 59 N.W.2d at 844). Accordingly, we

treat the following as additional findings:

                     3. . . . [Reynolds] . . . knew and understood he would
              violate the statute if he left his primary address, no longer had
              a primary address, and failed to notify law enforcement of
              this within 24 hours.

                     ....



                                              D-3
                    6. In this case, [Reynolds] left his primary residence—
             the [Grasston] residence where he had been living with
             [D.M.W.]. He went to visit his parents for Christmas at the
             Mora residence. He did not have to register immediately.
             However, he called [D.M.W.] later that night to ask if he
             could return home. [D.M.W.] honored her promise and said
             that he could not return to her home because they were
             finished. As a result, [Reynolds] no longer had a primary
             address because [D.M.W.] had kicked him out. . . . It does not
             matter if [Reynolds] thought he and [D.M.W.] would get back
             together at a later date. The fact of the matter is that [D.M.W.]
             specifically told him that he was not welcome at her home.
             This means [Reynolds] no longer had a primary address. . . .

                    7. . . . [Reynolds] may not have subjectively believed
             he had to tell law enforcement where he was staying within
             24 hours after [D.M.W.] kicked him out. But that was when
             he no longer had a primary address . . . .

                    ....

                    10. . . . [D.M.W.] directly and specifically kicked
             [Reynolds] out. She told him this on Christmas Day and
             repeated this several times afterwards. Since [Reynolds] . . .
             actually lost his primary address and knew or should have
             known that he lost his primary address, subdivision 3a
             applies. . . .

                    11. [Reynolds] complied with the registration law for
             years. [Reynolds] was obviously confused about what the law
             required him to do in this specific fact situation. . . . He did
             not know that his situation required him to notify law
             enforcement within 24 hours of being kicked out of
             [D.M.W.]’s home . . . .

(Emphasis added.)

      Based on the district court’s finding that Reynolds “believed the [Grasston]

address was his primary address the entire time he stayed at the Mora residence because

he thought he and [D.M.W.] may reconcile,” the majority concludes that “[Reynolds]


                                           D-4
cannot have knowingly failed to register after a change of primary address where he did

not believe his primary address to have changed.” The majority cites State v. Watkins,

840 N.W.2d 21, 29−30 (Minn. 2013), and State v. Gunderson, 812 N.W.2d 156, 160−61

(Minn. App. 2012), as support for its conclusion. I respectfully disagree that those cases

support reversal here. Both Watkins and Gunderson arose out of convictions of violating

court orders—in Watkins a domestic-abuse no-contact order and in Gunderson a

harassment restraining order. See Watkins, 840 N.W.2d at 23; Gunderson, 812 N.W.2d at

158. In both cases, the district court conducted a jury trial and failed to instruct the jury

on the “knowingly” element of the charge. See Watkins, 840 N.W.2d at 25; Gunderson,

812 N.W.2d at 161.

       In this case, the district court conducted a bench trial and found that Reynolds lost

his primary address when D.M.W. kicked him out of her home on Christmas Day 2013;

that he “knew or should have known that he lost his primary address”; and that he “knew

and understood he would violate the statute if he left his primary address, no longer had a

primary address, and failed to notify law enforcement of this within 24 hours.” The court

cited and discussed Watkins and Gunderson, stating that “[a] person must ‘knowingly

violate’ section 243.166 to commit a crime. This means he must be aware that the statute

prohibits the action he takes.” The court concluded that “[i]t does not matter if

[Reynolds] thought he and [D.M.W.] would get back together at a later date.”

       No published caselaw defines “knowingly” in the predatory-offender registration

statute. Although unpublished decisions of this court are not precedential, Minn. Stat.

§ 480A.08, subd. 3(c) (2014), no unpublished decision addresses whether a finding that a

                                            D-5
defendant either knew or should have known is sufficient to satisfy “knowingly” in the

predatory-offender registration statute. See State v. Pederson, No. A14-1849, 2015 WL

5089026, at *3−4 (Minn. App. Aug. 31, 2015) (noting that no published caselaw defines

“knowingly” in predatory-offender registration statute, citing Watkins and Gunderson,

and rejecting insufficiency-of-evidence argument that Pederson did not “perceive

directly” that his conduct violated the statute), review denied (Minn. Oct. 28, 2015); State

v. Howard, No. A12-1801, 2013 WL 6050327, at *4−5 (Minn. App. Nov. 18, 2013)

(concluding that because Howard had bench trial on charge of violating predatory-

offender registration statute, Gunderson had no application to case; noting that district

court was fully aware of and applied “knowingly” element to case; and rejecting

argument that court misconstrued “knowingly” element); State v. Kotlov, No. A12-1073,

2013 WL 2301825, at *3−4 (Minn. App. May 28, 2013) (citing Gunderson and rejecting

argument that factual basis underlying plea was insufficient to support conviction that

Kotlov knowingly violated predatory-offender registration statute), review denied (Minn.

Aug. 20, 2013); State v. Whitelaw, No. A12-0522, 2013 WL 399341, at *2 (Minn. App.

Feb. 4, 2013) (citing Gunderson and rejecting argument that evidence was insufficient to

prove that Whitelaw knowingly violated predatory-offender registration requirements).

       In this case, I agree with the district court that Reynolds’s confusion about his

statutory registration requirements does not constitute a legal excuse, and I would affirm

his conviction.




                                            D-6
