                          This opinion will be unpublished and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
                                  A14-0421, A14-0751

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Michael James Larson,
                                      Appellant.

                                Filed December 29, 2014
                                Reversed and remanded
                                     Hooten, Judge

                             St. Louis County District Court
                              File No. 69DU-CR-13-3130

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

Mark S. Rubin, St. Louis County Attorney, Jessica J. Fralich, Assistant County Attorney,
Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

         Appellant challenges the district court’s order requiring him to register as a

predatory offender, contending that the charged predatory offenses and the three non-
predatory offenses of which he was convicted do not arise from the same set of

circumstances. Because the offenses do not arise from the same set of circumstances, we

reverse the district court’s registration decision.

                                           FACTS

       The facts are undisputed. Appellant Michael James Larson was in a romantic

relationship with K.A.S. They had two children together and shared a residence. The

two had a tumultuous relationship. Among other things, K.A.S. told police that Larson

would frequently threaten to burn down their residence “in order to get her to do things

and make her fearful of him.”

       According to the complaint, Larson forced K.A.S. to have sex with him while they

were both in the living room at their residence on the morning of July 23, 2013.1 Later

that same day, between 3:06 p.m. and 5:51 p.m., Larson sent a series of 50 text messages

to K.A.S. in which he threatened to set their house on fire if she did not buy him alcohol.

According to the complaint, some of the messages included: “FD will be here in 5,”

“smoking,” “smoking last chance,” and “hurry, foggy looking.”           K.A.S. eventually

bought alcohol for Larson in response to these messages. K.A.S. left the residence on

July 24 with the couple’s two children. On July 26, between 3:00 a.m. and 3:16 a.m.,

Larson sent another series of text messages to K.A.S., saying that she was “not taking

[him] seriously” and asking her to “[a]nswer please.” Later that same morning, at 11:47

a.m., Larson sent her a text message saying “Babe, our house is on fire.”

1
  According to the complaint, Larson told police the sexual conduct occurred the morning
of July 24, but, on appeal, both parties agree that the alleged sexual conduct took place on
the morning of July 23.

                                               2
       The shared residence was set ablaze the morning of July 26. When officers

arrived at the scene and interviewed Larson, he initially denied having intentionally

started the fire. But after a canine trained to detect accelerants alerted to him, Larson told

investigators that he had poured gasoline at the fire’s points of origin and lit the gasoline

with a lighter. Larson contended that he was under the influence of alcohol and morphine

at the time. The residence was a complete loss due to the fire, and nearby property

sustained minor damage as well.

       In connection with the fire and preceding events, prosecutors charged Larson with

first-degree arson, third- and fourth-degree criminal sexual conduct, felony stalking,

pattern of stalking conduct, and felony domestic assault. He eventually entered into a

plea agreement in which the state agreed to dismiss the criminal sexual conduct and

domestic assault charges and modify the pattern of stalking conduct charge to felony

stalking; in exchange, Larson agreed to plead guilty to two counts of felony stalking, one

count of first-degree arson, and accept a prison sentence of 100 months. The district

court held a plea hearing on October 30, 2013, at which Larson pleaded guilty to the

arson and stalking charges. At the sentencing hearing, Larson brought a motion to

withdraw his plea. The district court denied Larson’s motion and sentenced him to 18

months’ imprisonment for each stalking conviction and 64 months’ imprisonment for the

arson conviction, with the sentences to run consecutively for the agreed-upon total of 100

months. Larson appealed.

       The Department of Corrections later advised all parties that Larson had not been

given notice of his registration requirement, and the district court convened a review


                                              3
hearing to determine whether Larson would be required to register as a predatory

offender. The district court ultimately ordered Larson to register, reasoning that “all of

the charged and convicted offenses were born from the same tactics of intimidation used

by [Larson] towards the same victim,” and that the circumstances were sufficiently linked

to require registration. Larson appealed from the district court’s order, and consolidated

this case with his prior appeal.

                                      DECISION

       The only issue raised by Larson in his consolidated appeal is that the district court

erred in ordering him to register as a predatory offender. Although some discrepancies

exist in the record, in their briefs the parties rely largely upon the same set of allegations

drawn from the complaint and plea hearing. Because there is no dispute regarding the

material facts in this case, de novo review is appropriate in applying the registration

statute to the facts. State v. Lopez, 778 N.W.2d 700, 705 (Minn. 2010).

       The purpose of section 243.166 is to aid law enforcement investigations through

creation of a predatory offender registry. State v. Ulrich, 829 N.W.2d 429, 430 (Minn.

App. 2013). Persons are required to register as predatory offenders if:

              (1)    The person was charged with or petitioned for a felony
              violation of or attempt to violate . . . any of the following, and
              convicted of or adjudicated delinquent for that offense or
              another offense arising out of the same set of circumstances:

                    (iii) criminal sexual conduct under section . . .
              609.344; 609.345 . . . .

Minn. Stat. § 243.166, subd. 1b(a)(1)(iii) (2012) (emphasis added). The “same set of

circumstances” provision means that registration is required “where the same general


                                              4
group of facts give rise to both the conviction and the charged predatory offense.” Lopez,

778 N.W.2d at 706.

       Larson was charged with third- and fourth-degree criminal sexual conduct in

violation of Minnesota Statutes sections 609.344, subdivision 1(c) (2012) and 609.345,

subdivision 1(c) (2012), both of which are predatory offenses. See Minn. Stat. § 243.166,

subd. 1b(a)(1)(iii). But Larson ultimately pleaded to and was convicted of three other

non-predatory offenses—arson and two counts of stalking. The point of contention

between the parties is whether any of the conviction offenses arise out of the “same set of

circumstances” as the charged criminal sexual conduct. Minn. Stat. § 243.166, subd.

1b(a)(1). In order to evaluate whether any of the offenses arise from the “same set of

circumstances,” we first look at the circumstances “required to establish culpability” for

each conviction, as well as the circumstances underlying the alleged predatory offense.

Lopez, 778 N.W.2d at 706.

       To establish culpability for the two stalking convictions, the state would have had

to prove that Larson “kn[ew] or ha[d] reason to know [he] would cause the victim under

the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated”

by “manifest[ing] a purpose or intent to injure the person [or] property . . . of another by

the commission of an unlawful act.” Minn. Stat. § 609.749, subds. 1, 2(1) (2012). The

circumstances established at Larson’s plea hearing supported two instances of stalking.

The first was on July 23, when Larson sent a series of 50 text messages to K.A.S. in less

than three hours in which he threatened to burn their house down if she did not buy him

alcohol. The second instance was three days later, on July 26, when he sent more text


                                             5
messages to K.A.S., including one message telling her that the house was on fire. From

the record, it is clear that the district court was relying only on these events in finding

Larson guilty of stalking. During the plea hearing, the prosecutor asked Larson if the

“threat to burn down the residence” and the “repeated text messages” made him guilty of

the two stalking offenses, with no mention of the criminal sexual conduct allegations by

the parties or the district court.

       To convict Larson of first-degree arson, the state would have had to prove that

Larson, “unlawfully by means of fire or explosives, intentionally destroy[ed] or

damage[d] any building that is used as a dwelling at the time the act is committed,

whether the inhabitant is present therein at the time of the act or not.” Minn. Stat.

§ 609.561, subd. 1 (2012). The circumstances establish that sometime on the morning of

July 26, Larson poured gasoline throughout his residence, and started the fire on a couch

downstairs and in a toddler bed upstairs. Potential victims included K.A.S. and their two

children who lived at the residence but were absent at the time of the fire, as well as

nearby neighbors who had dwellings in the vicinity of the fire and others who were either

passing by the house or were called to combat the fire and rescue victims. Again, there

was no indication that the district court relied on the criminal sexual conduct allegations

in taking Larson’s guilty plea to first-degree arson.

       Because the alleged circumstances of the criminal sexual conduct charges were

not stated at the plea hearing, they are instead drawn solely from the complaint. K.A.S.

indicated that Larson had sex with her against her will while they were both in the living

room at their shared residence in the early morning hours of July 23. K.A.S. told the


                                              6
police that Larson grabbed her, forced himself on her, and penetrated her vagina and

ejaculated. Larson later confirmed that the two had sex before he left for work in the

morning, and claimed the act was consensual.

       We next determine whether the circumstances underlying any of the three

conviction offenses are “sufficiently linked in time, location, people, and events” to the

charged predatory offenses to constitute the “same set of circumstances.” Lopez, 778

N.W.2d at 706. While the offenses “need not be based on identical facts,” the supreme

court has warned that mere “related circumstances” between the predatory charged

offenses and the conviction offenses are insufficient to trigger the registration

requirement. Id. The facts of Lopez are especially instructive here, as it appears to be the

only published decision regarding the registration statute in which the circumstances

underlying a predatory charge and a conviction were not united in time and place. Cf.

Gunderson v. Hvass, 339 F.3d 639, 641, 642–43 (8th Cir. 2003) (providing that assault of

which defendant was convicted occurred simultaneous to charged sexual conduct);

Boutin v. LaFleur, 591 N.W.2d 711, 716 n.4 (Minn. 1999) (holding that offenses arose

out of same set of circumstances when defendant admitted the assault offense was

aggravated by sexual conduct soon after assault).

       In Lopez, the defendants were two brothers who twice sold methamphetamine to a

confidential informant. Lopez, 778 N.W.2d at 702. Ten days after the second drug sale,

the brothers allegedly kidnapped the informant and his friend in an attempt to extort

payment of debt remaining from the second sale. Id. The brothers were charged with

aiding and abetting kidnapping and a controlled substance crime, but the kidnapping


                                             7
charges were dismissed by the state and they were convicted of only the controlled

substance offense. Id. at 703. This court2 held that the kidnapping charges arose from

the “same set of circumstances” as the controlled substance offense for purposes of the

registration statute, because the offenses were related by “the prospect of financial gain”

which “drives the trafficking in controlled substances” and connected the offenses as an

“overall, intra-related transaction.” Lopez, 764 N.W.2d at 610; see also State v. Lopez,

No. A08-0100, 2009 WL 749007, at *3–4 (Minn. App. Mar. 24, 2009) (“The same

conduct and motive . . . gave rise to the [offenses].”), rev’d, 778 N.W.2d at 700.

       On appeal, the supreme court reversed the registration requirement for the Lopez

brothers. Lopez, 778 N.W.2d at 707. The court held that only a “single common

circumstance,” payment of a drug sale debt, united the offenses. Id. at 706. “No further

circumstances were required to establish culpability for the drug sale, and the stipulated

facts underlying the drug conviction did not mention the alleged kidnapping.” Id. The

differences in time (ten days), location, and people involved in the offenses were

sufficient to preclude registration when the only connection between offenses was “so

tenuous a link as the source of [the] debt” that led to the kidnapping. Id. at 707.

       The events in this case have a similar “tenuous” link: Larson’s harassment of

K.A.S. The state argues that Larson’s alleged criminal sexual conduct “was the opening

act of a three-day campaign of fear and intimidation,” echoing the district court’s

conclusion that “all of the charged offenses were born from the same tactics of


2
  The Lopez brothers appealed separately to this court, and we affirmed in separate
opinions. Their cases were consolidated on review by the supreme court.

                                              8
intimidation” used by Larson against K.A.S. But these arguments repeat the line of

reasoning rejected in Lopez. As was the case in Lopez, the circumstances required to

establish culpability for any one of Larson’s stalking and arson convictions are wholly

separate from any of the facts underlying the alleged criminal sexual conduct, as

evidenced by the absence of those facts in the plea hearing record. The progression of

events simply does not connect either the stalking or arson conduct to the alleged

criminal sexual conduct. The alleged criminal sexual conduct was completed well before

the stalking began later in the afternoon, and the record provides no indication that the

stalking or arson were connected to or motivated by the alleged criminal sexual conduct.

Likewise, nothing in the complaint provides that Larson used the threat of arson or

stalking in order to perpetrate the alleged sexual assault. While Larson’s general pattern

of intimidation toward K.A.S. may connect the offenses, Lopez instructs us that more

than a common motive is required to meet the “same set of circumstances” test. Id. at

706.

       A further examination of the time, location, and people involved show that the

circumstances lack the necessary “overlap” to sufficiently link the offenses. See id.

First, the offenses happened in separate timeframes. The alleged sexual conduct began

and ended at the shared residence on the morning of July 23. Several hours later, at 3:06

p.m., Larson began sending text messages to K.A.S. that were unrelated to the criminal

sexual conduct—he was threatening arson and demanding she buy him alcohol. The

second text message conversation and arson occurred three days later. While this passage

of time is less extensive than the ten days in Lopez, the temporal difference here is much


                                            9
greater than the near-simultaneous conduct that was alleged in Gunderson and Boutin.

Gunderson, 339 F.3d at 641; Boutin, 591 N.W.2d at 714. There is no similar temporal

and causal link between the alleged sexual assault and any of the three convictions in this

case.

        Because of the nature of the relationship between Larson and K.A.S., there is

some overlap in location regarding the arson offense. The two shared a home, and it is

logical that the residence would be the site of any alleged criminal sexual conduct as well

as the target of arson. But, neither instance of stalking necessarily took place in the

residence. Larson stalked K.A.S. via text message, and while the record is unclear where

the parties were during those contacts, K.A.S. had left the residence prior to receiving the

second set of text messages. And given the nature of the communication, it is highly

unlikely that they would have both been at the residence during the first exchange of text

messages.

        Another circumstance relates the two stalking convictions and the predatory

offenses due to the abusive relationship: K.A.S. was the victim of both the alleged

criminal sexual conduct and the stalking. But that is not true of the arson. One of the

“different circumstances g[iving] rise to the kidnapping charge” in Lopez was the

“slightly different group of people” involved in that offense, as compared to the

controlled substance conviction. Lopez, 778 N.W.2d at 706. Here, as in Lopez, potential

victims of the arson were different and more numerous: K.A.S., the couple’s two

children, nearby neighbors and passersby were all put at risk due to the fire, and fire and

rescue personnel.


                                            10
      The Lopez court cautioned that “related circumstances” between offenses are not

sufficient to require registration. Id. The record contains evidence that Larson engaged

in a general pattern of harassment against K.A.S. over the course of their relationship.

But, this related pattern of harassment is insufficient under Lopez to satisfy the

requirement that any of Larson’s convictions of stalking and arson and the alleged sexual

conduct arise out of the “same set of circumstances” and are “sufficiently linked in time,

location, people, and events.” See id. We reverse the district court’s decision requiring

Larson to register as a predatory offender and remand for the district court to modify its

sentencing order accordingly.

      Reversed and remanded.




                                           11
