State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1274

State of Minnesota,
Respondent,

vs.

Kevin Herman Larson,
Appellant.

Filed September 10, 2018
Affirmed
Halbrooks, Judge

Rice County District Court
File No. 66-CR-15-2182

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

John Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney,
Faribault, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges his judgment of conviction of failing to register as a predatory
sex offender, arguing that his conviction must be reversed because the evidence he

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introduced during phase two of his bifurcated jury trial proved that, at the time he
committed the offense, he was suffering from a delusionary disorder , and, as a result, he
did not know that failing to register was morally wrong. In a pro se supplemental brief,
appellant contends that the predatory-offender registration statute is an unconstitutional bill
of attainder. We affirm.
FACTS
Appellant Kevin Larson is obligated by law to register as a predatory sex offender.
State v. Larson, No. A06-623, 2007 WL 2993608, at *1 (Minn. App. Oct. 16, 2007), review
denied (Minn. Dec. 19, 2007) . His duty to register is based on his 1992 second -degree
criminal-sexual-conduct conviction. Id. Excluding the instant conviction, Larson has been
convicted of failing to register four times since 1992. This is Larson’s third appeal to this
court. See id.; State v. Larson, No. A05-40, 2006 WL 618857, at *1 (Minn. App. Mar. 14,
2006), review denied (Minn. May 16, 2006).
Between May and August 2015, Larson’s caseworker met with him in prison six
times to discuss his legal duty to register. Larson refused to register each time. On August
26, 2015, a Bureau of Criminal Apprehension (BCA) agent met with Larson. During that
meeting, the agent read aloud each section of the six -page registration form to Larson.
Larson again refused to register.
The state charged Larson with violating the registration requirements under Minn.
Stat. § 243.166, subd. 3(a) (2014). Larson raised a mental-illness defense. The case
proceeded to a bifurcated jury trial. In the first phase, the jury found Larson guilty of
knowingly failing to register as a predatory sex offender.

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The second phase of trial focused on Larson’s mental -illness defense. Two
psychologists testified. Larson called his court-appointed expert, Linda Marshall, Ph.D.,
L.P., who had conducted a rule 20.02 evaluation of Larson and met with him once for
approximately one hour . In preparation for the interview, Dr. Marshall reviewed the
complaint, the probable -cause statement, police records, and depart ment of corrections
records. She also reviewed two documents that Larson wrote. Dr. Marshall diagnosed
Larson with a delusional disorder—persecutory type.
Dr. Marshall testified that a person with a delusional disorder normally exhibits two
types of delusions: bizarre or non -bizarre. She opined that Larson exhibits a non -bizarre
delusion—believing that “he is exempt from having to register.” According to
Dr. Marshall, Larson believes, with conviction, that he does not have to register, that he is
right, and that everyone else is wrong. She also testified that a person who suffers from a
persecutory-type delusional disorder “believes that people are out to get him, basically.”
In Larson’s case, Dr. Marshall stated that he believes that the courts and everyone else are
against him.
Dr. Marshall also commented on a 23-page document that Larson wrote. In the
document, Larson discusses delusional thoughts such as the idea that putting his signature
on the predatory-offender registration form transforms his signature and personal identity
into property of the government. According to Dr. Marshall, the distorted thoughts
contained within the document support her diagnosis.
The state called Penny Zwecker, Ph.D., L.P. Dr. Zwecker testified that she met with
Larson three times and performed two psychological tests: the MMPI-2 and the MCMI-3.

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The MMPI-2 requires test takers to answer approximately 500 questions relating to various
mental-health issues, including schizophreni a, depression, and anxiety ; the MCMI-3 is a
“much shorter test” that “looks m ore at personality features.” Dr. Zwecker testified that
she chose these tests because “they really do a good assessment of a person’s mental health
issues if a person has them.”
Dr. Zwecker diagnosed Larson with “generalized anxiety disorder, schizoid
personality disorder, and anti-social personality disorder.” Dr. Zwecker did not agree that
Larson suffers from a delusionary disorder . She stated that if Larson were “clearly
delusional, that would have shown up in either or both of the tests.” When asked why she
believed that Larson refused to register, she testi fied that he is “being stubborn ” and that
she did not believe that Larson was laboring under a mental illness or def ect at the time
that he refused to complete the registration form. The jury rejected Larson’s mental-illness
defense and found him guilty of failing to register as a predatory offender. This appeal
follows.
D E C I S I O N
Larson argues that his failure-to-register conviction must be reversed, reasoning that
Dr. Marshall’s testimony established, by a preponderance of the evidence, that at the time
he did not register in August 2015, he was suffering from a delusionary disorder and did
not know that it was morally wrong not to do so.
The assertion of an affirmative defense of mental illness involves a question of fact.
State v. Roberts, 876 N.W.2d 863, 868 (Minn. 2016), cert. denied, 137 S. Ct. 312 (2016).
Therefore, a finding that a defendant failed to meet his burden of proving a mental -illness

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defense will not be disturbed unless it is clearly erroneous. Id. “A factual finding is clearly
erroneous if it does not have evidentiary support in the record or if it wa s induced by an
erroneous view of the law” as well as if we are “left with the definite and firm conviction
that a mistake has been made.” Id. (quotation omitted). We give great deference to the
fact-finder in determining the proper weight to assign expe rt psychiatric testimony. Id.
“[T]he factfinder is not bound by expert psychiatric testimony and may reject it entirely,
even when the only experts who testify support the defendant’s assertion of a mental-illness
defense.” Id. (emphasis added).
A defendant is presumed responsible for his acts and bears the burden of rebutting
that presumption by a preponderance of the evidence. Minn. Stat. § 611.025 (2014);
Roberts, 876 N.W.2d at 867. Minnesota’s mental -illness defense follows the M’Naghten
rule, codified under Minn. Stat. § 611.026 (2014), which provides:
No person having a mental illness or cognitive impairment so
as to be incapable of understanding the proceedings or making
a defense shall be tried, sentenced, or punished for any crime;
but the per son shall not be excused from criminal liability
except upon proof that at the time of committing the alleged
criminal act the person was laboring under such a defect of
reason, from one of these causes, as not to know the nature of
the act, or that it was wrong.

Larson does not dispute that he knew the nature of his act; rather, he contends that
he did not know that his act of failing to register was wrong. The word “wrong” in the
above statute is “used in the moral sense.” Id. at 868 (quotation omitted). Put another way,
in order for Larson to be guilty, he “must know that his act was wrong in a moral sense and
not merely know that he has violated a statute.” Id. (quotation omitted).

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In support of his argument, Larson relies o n State v. Rawland . 199 N.W.2d 774,
787 (Minn. 1972). There, the supreme court reversed the conviction of a defendant who
murdered his father during an “extended period of mental illness” where he was “so out of
touch with reality that he must have acted without knowing whether the act was right or
wrong.” Id. Rawland’s delusions included beliefs that his parents planned to kill him, his
announcement that he was campaigning for U.S. president, his plan to swim to Canada to
escape an alleged assassination, and his attempt at sending messages to the world through
his AM radio. Id. at 776-77, 787-88.
Rawland is distinguishable from this case. In Rawland, “[a]ll experts agreed [that
Rawland] had a serious mental disease . . . at the time of the event”; “ [a]ll experts agreed
that he did not have the ability to control his actions at the moment the offense was
committed” and “lacked the capacity to freely and deliberately choose to commit the act”;
and “[a]ll experts inferred that . . . he was not at the time able to distinguish between right
and wrong.” Id. at 788.
Here, Dr. Marshall and Dr. Zwecker differ with respect to Larson’s diagnosis and
his understanding of moral wrongfulness. The supreme court has repeatedly stated that
appellate courts give broad deference to the fact-finder’s determination of the appropriate
weight to give to expert psychiatric testimony. E.g., State v. Odell, 676 N.W.2d 646, 648-
49 (Minn. 2004); see State v. Lee, 491 N.W.2d 895, 900 (Minn. 1992) (providing that “[i]t
is solely the function of the jury to determine the ultimate question as to whether or not the
appropriate [mental] capacity exists ” (quotation omitted)). “Weighing the credibility of

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witnesses, including expert witnesses, is the exclusive function of the ju ry.” State v.
Triplett, 435 N.W.2d 38, 44 (Minn. 1989).
When there is conflicting expert testimony, we defer to the fact-finder’s evaluation
of that testimony and the weight given to it when making a factual conclusion. See Roberts,
876 N.W.2d at 870 (affirming conviction where experts were divided on the type, severity,
and remission of the defendant’s mental illness and on his knowledge of moral
wrongfulness); State v. Beito , 332 N.W.2d 645, 647 (Minn. 1983) (affirming conviction
although defendant prod uced two expert opinions on his mental illness and the state
produced one, reasoning that “the trial court could have completely relied on the testimony
of one of the defense experts and still have found defendant guilty as charged”) . The jury
heard Dr. Marshall’s and Dr. Zwecker’s testimony and concluded that Larson did not suffer
from a mental illness at the time that he failed to register. The jury’s finding is supported
by the record and is not clearly erroneous.
In a pro se supplemental brief, Larson argues that the predatory-offender registration
statute is an unconstitutional bill of attainder. We have twice rejected this argument. See
Larson, 2007 WL 2993608, at *11 (“We rejected this argument during Larson’s appeal
from his 2004 convictions, and we see no basis to revisit that decision.”); Larson, 2006
WL 618857, at *4 (“Because Larson waived his right to a judicial trial and because sex -
offender registration is not punishment, we conclude that the predatory -offender
registration statute is not a bill of attainder.”). Because this court has previously concluded
that the predatory-offender registration statute is not an unconstitutional bill of attainder,

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Larson, 2007 WL 2993608, at *11; Larson, 2006 WL 618857, at *4, we decline to consider
Larson’s argument.
Affirmed.