                         This opinion will be unpublished and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
                                    A14-1583

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Joseph Ervin Peirce,
                                       Appellant.

                               Filed September 28, 2015
                                       Reversed
                                     Reyes, Judge

                            Hennepin County District Court
                               File No. 27CR1331327

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

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

Reyes, Judge.

                        UNPUBLISHED OPINION

REYES, Judge

      Appellant Joseph Ervin Peirce appeals his conviction of failure to register as a

predatory offender, arguing that the conviction was not supported by the evidence.
Because we conclude that the evidence was insufficient to prove that appellant failed to

register his primary or secondary address, we reverse.

                                           FACTS

       Appellant was convicted of an offense in 1999, requiring him to register as a

predatory offender. On August 22, 2013, appellant submitted a change of information

form to the Bureau of Criminal Apprehension (BCA), listing his primary address as his

mother’s apartment in Bloomington beginning September 6, 2013. He did not list any

secondary address. The BCA mailed a letter to appellant at that address, requesting

appellant to respond within ten days to verify that the address on file was correct. The

BCA did not receive a response from appellant nor was the letter returned to the BCA as

undeliverable.

       On September 13, 2013, Bloomington detectives Ed Hanson and George Harms

went to the Bloomington apartment to conduct a registration check. Upon arrival,

Detective Hanson spoke to appellant’s older brother, J.P., who told the detectives that

appellant had not been staying at the residence, that he did not know appellant’s

whereabouts, and that he did not know how to contact appellant. Appellant was charged

by an amended complaint with failure to register as a predatory offender, a felony

offense, pursuant to Minn. Stat. § 243.166, subd. 5(a) (2012).

       At trial, J.P. testified that appellant was living at the apartment, along with their

mother and younger brother, J.M. J.P. explained that he was not home often, had an

opposite schedule than his mother, and did not know that appellant received permission

from their mother to stay at the apartment until he spoke to her after the officers visited


                                               2
the home. J.P. testified that he did not get along with appellant and only saw him for ten

minutes on one occasion when appellant came to the apartment after appellant “got out of

prison.”

       Detective Hanson testified that J.P. told the detectives that appellant did not live at

the residence but that appellant had called to ask if he could use that address as a mailing

address. Detective Hanson did not speak to appellant’s mother.

       J.M. testified that he lived at the residence with J.P. and their mother for

approximately one year beginning in February 2013. J.M. stated that from August 2013

until December 2013, he saw appellant approximately four to six times. Similar to J.P.,

J.M. had a busy work schedule and was not home often.

       According to E.P., the manager of the apartment complex, appellant’s mother,

J.P., and J.M. were the only tenants residing at that apartment between August and

December 2013. E.P. lived in the same complex and often saw the three tenants walking

their two dogs. All tenants over the age of 18 were required to be on the lease, and

failure to do so was a violation of the lease conditions. Appellant was not on the lease.

E.P. testified that she did not see appellant around the apartment complex, but

acknowledged that she did not know what appellant looked like. E.P. stated that after the

police visited the apartment, J.P. came to her office to tell her that appellant was not

residing at the apartment.

       Appellant was arrested in Los Angeles on December 19, 2013. During phone calls

placed from the Hennepin County Jail, appellant indicated that he was going to “stay

around” and asked whether he could stay in Mille Lacs at his wife’s home once he was


                                              3
released. These calls were recorded and kept as part of the jail’s record in its normal

course of business. Redacted versions of the calls were played to the jury and admitted

into evidence.

       M.B., appellant’s mother, was the only witness who testified for appellant. M.B.

stated that around September, she agreed to let appellant stay at her apartment. M.B.

worked night shifts and was not home often. She estimated that, during the limited time

that she was at the apartment, she saw appellant about three to five times from September

to December 2013. M.B. testified that in August 2013, close to the time appellant was

“getting out” of jail, she told J.P. and J.M. that appellant would be staying with them.

       The jury returned a verdict finding appellant guilty of the charged offense.

Appellant was ordered to complete a presumptive sentence of 39 months in prison. This

appeal followed.

                                     DECISION

       Appellant argues that the evidence is insufficient to support the conviction of

failure to register as a predatory offender under Minn. Stat. § 243.166, subd. 5(a),

because the state failed to prove where appellant was living, how long he had been living

there, and whether he intended to move there permanently. We agree.

       When we assess the sufficiency of the evidence, “we review the evidence to

determine whether the facts in the record and the legitimate inferences drawn from them

would permit the jury to reasonably conclude that the defendant was guilty beyond a

reasonable doubt of the offense of which he was convicted.” State v. Al-Naseer, 788

N.W.2d 469, 473 (Minn. 2010) (quotation omitted). We assume that “the jury believed


                                             4
the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438

N.W.2d 101, 108 (Minn. 1989). We will not reverse a conviction for insufficient

evidence if the jury, acting with due regard for the presumption of innocence and the

necessity of proof beyond a reasonable doubt, could reasonably conclude that the

defendant was guilty of the offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn.

2004).

         The state had to prove four elements to establish that appellant failed to register as

a predatory offender: (1) that he is a person required to register as a predatory offender;

(2) that he knowingly violated any registration requirements; (3) that “the time period

during which [he] is required to register has not elapsed;” and (4) that his failure to

register occurred between August 22, 2013 and December 19, 2013, in Hennepin County.

See 10 Minnesota Practice, CRIMJIG 12.102 (2006). Appellant stipulated to the first and

third element and does not contest the fourth. Our inquiry is therefore limited to the

second element—whether appellant knowingly violated a provision in the registration

statute.

         A person who is required to register under the statute must register with the

corrections agent or law enforcement authority the person’s primary address and “all of

the person’s secondary addresses in Minnesota.” Minn. Stat. § 243.166, subd. 4a(a)(1)-

(2) (2012). In connection with a move to a new address, written notice must be given to

the assigned corrections agent or to law-enforcement authority “at least five days before

the person starts living at [the] new primary address.” Id., subd. 3(b) (2012).

Subdivision 3(b) also requires the person to give written notice that the person “is no


                                                5
longer living or staying at an address” to the “assigned corrections agent or . . . law

enforcement authority that has jurisdiction in the area of the person’s primary

address . . . immediately after the person is no longer living or staying at that address.”

Id. Primary address is defined as “the mailing address of the person’s dwelling.”

Id., subd. 1a(g) (2012). And a “dwelling” is “where the person lives under a formal or

informal agreement to do so.” Id., subd. 1a(c) (2012) (emphasis added). A secondary

address is “where the person regularly or occasionally stays overnight when not staying

at the person’s primary address.” Id., subd. 1a(i) (2012) (emphasis added).

       At trial, the district court instructed the jury that appellant was guilty of the

charged offense if he “knowingly violated any of the requirements of registration.”1 The

district court went on to explain:

              The requirements of registration include that the defendant
              must provide to a corrections agent or law enforcement
              authority the defendant’s primary address. Primary address
              means the mailing address of the person’s dwelling.
                     The defendant must also provide to the corrections
              agent or law enforcement authority all of the defendant’s
              secondary addresses in Minnesota . . . . Secondary address
              means the mailing address of any place where the person
              regularly or occasionally stays overnight when not staying at
              the person’s primary address.


1
  We note that appellant was charged and convicted of violating subdivision 5(a).
Subdivision 5(a) is entitled “criminal penalty” and provides, generally, that a person
“required to register under this section who knowingly violates any of its provisions or
intentionally provides false information to a corrections agent, law enforcement authority,
or the bureau is guilty of a felony.” Minn. Stat. § 243.166, subd. 5(a). Subdivision 5
does not contain any specific registration requirements. See id. Rather, the registration
requirements are enumerated in the remainder of the statute, including content
requirements, id., subds. 4-4b (2012), registration procedures, id., subds. 3-3a (2012), and
time requirements, id., subds. 1, 6 (2012).

                                               6
                     The defendant must provide this information within
              five days of any change in primary or secondary address.

Similarly, in his closing arguments, the prosecutor stated, “[T]he two requirements [of

registration] at issue here are, number one the defendant must register a primary address

and, number two, the defendant must register any secondary address in . . . Minnesota

within five days of that becoming applicable.”

       The statute, however, also requires the state to prove that appellant “knowingly”

violated a provision of the registration statute. Id., subd. 5(a). Knowledge “generally is

proved circumstantially, by inference from words and acts of the actor both before and

after the incident.” State v. Johnson, 616 N.W.2d 720, 726 (Minn. 2000). “A conviction

based on circumstantial evidence . . . warrants heightened scrutiny” compared to a

conviction based on direct evidence. Al-Naseer, 788 N.W.2d at 473. This heightened

scrutiny comes in the form of a two-step analysis. State v. Silvernail, 831 N.W.2d 594,

598 (Minn. 2013).

       The first step is to identify the circumstances proved, giving deference to the fact-

finder and construing the evidence in the light most favorable to the verdict. State v.

Andersen, 784 N.W.2d 320, 329-30 (Minn. 2009). Under this step, we assume that the

fact-finder rejected the defendant’s version of events. See Al-Naseer, 788 N.W.2d at 473.

       Taken in the light most favorable to the verdict, the evidence established the

following circumstances: (1) J.P. saw appellant for a total of ten minutes on one occasion

between August and September; (2) J.M. saw appellant at the residence approximately

four to six times during the relevant time period; (3) appellant was not on the lease and



                                             7
was not issued a key to the apartment; (4) J.P. told E.P. that appellant was not residing at

the apartment; (5) on December 19, 2013, appellant was in the state of California;

(6) appellant’s mother saw appellant at her residence three or five times between

September and December; (7) in appellant’s recorded phone call from Hennepin County

Jail, he is heard telling his mother that he was “gonna stay around here now”; and

(8) appellant received a letter from the BCA at his registered primary address but did not

respond to that letter.

       The second step requires us to “determine whether the circumstances proved are

consistent with guilt and inconsistent with any rational hypothesis except that of guilt.”

Silvernail, 831 N.W.2d at 599 (quotation omitted). “Circumstantial evidence must form a

complete chain that, as a whole, leads so directly to the guilt of the defendant as to

exclude beyond a reasonable doubt any reasonable inference other than guilt.” State v.

Hanson, 800 N.W.2d 618, 622 (Minn. 2011).

       One reasonable inference consistent with guilt is the inference offered by the

prosecutor in closing—that appellant had a secondary address in Minnesota which he

failed to register. But that is not the only reasonable inference that may be drawn.

       Another reasonable inference is that appellant had a secondary address in

California where he regularly or occasionally stayed when he was not at his primary

address in Bloomington.2 This is a reasonable inference that is inconsistent with guilt.


2
  While the prosecutor argued in closing that “if [appellant] was in California that whole
time between September and December, then the address in Bloomington is not his
primary address,” there is no evidence as to how long appellant was in California within
that time frame. Instead, the evidence shows that the officers visited the apartment in

                                              8
There is no requirement for persons required to register under section 243.166 to register

secondary addresses located outside of Minnesota. See Minn. Stat. § 243.166,

subd. 4a(a)(2) (requiring only a secondary address “in Minnesota”).

       “We have said that in such cases the circumstantial evidence must do more than

give rise to suspicion of guilt; [i]t must point unerringly to the accused’s guilt.” State v.

Scharmer, 501 N.W.2d 620, 622 (Minn. 1993) (quotation omitted). Because the

circumstances proved are consistent with a reasonable inference of guilt, but also

consistent with at least one reasonable inference that is inconsistent with guilt, we

conclude that the evidence is insufficient to prove that appellant is guilty of the charged

offense. See id. (“A detailed review of the evidence in this case, made in a light most

favorable to the verdict, does not exclude, beyond a reasonable doubt, all reasonable

inferences other than that of appellant’s guilt.”). Accordingly, we reverse.

       In addition to his sufficiency of the evidence argument, appellant also alleges that

(1) the district court committed reversible error by failing to instruct the jury that it must

unanimously decide which of the violations he committed; (2) hearsay and overly

prejudicial information about appellant were elicited by the prosecutor; (3) the district

court improperly assessed the factors outlined in State v. Jones, 271 N.W.2d 534, 537-38

(Minn. 1978), so as to allow appellant to be impeached with his prior offenses; and




Bloomington on one occasion during the relevant time period. That visit took place one
week after the date appellant indicated he would start living there. There is nothing in the
record that indicates that other visits were conducted in the following three months, or
that there were other letters sent to appellant by the BCA at that address.

                                               9
(4) the court erred in raising the presumptive sentence by an extra three months. Because

we reverse appellant’s conviction, we need not address his remaining arguments.

      Reversed.




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