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This opinion will be unpublished and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
A17-2003

State of Minnesota,
Respondent,

vs.

Luke Ryan Doud,
Appellant.

Filed August 20, 2018
Reversed
Connolly, Judge

Crow Wing County District Court
File No. 18-CR-17-2754

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

Donald F. Ryan, Crow Wing County Attorney, Mark Mitchell, Assistant County Attorney,
Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant)

Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and
Kalitowski, Judge.*

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

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant was convicted of failing to register as a predatory offender under Minn.
Stat. § 243.166, subd. 5(a) (2016), by violating subdivision 3(b) of that section. He now
argues that the state’s evidence is insufficient and that his conviction must be reversed. We
agree and reverse the conviction.
FACTS
Appellant Luke Ryan Doud was required to register under Minnesota’s predatory -
offender registration statute. On October 30, 2015, appellant completed two “Minnesota
predatory r egistration” forms. Under “primary address ,” he listed the residence of his
mother. Under “secondary and other addresses,” he listed the address of A.O., the mother
of his three children.
In late October, 2016, appellant was required to fill out and submit an “address
verification form.” Under “alternate residences,” the form contained a preprinted statement
“no alternate residence r eported” with an option to lis t a “new alternate r esidence.”
Appellant did not provide an alternate address. Because no secondary addresses were listed
on the most recently submitted form, appellant was no longer registering A.O.’s address as
a secondary address. Appellant confirmed that his mother ’s residence was h is current
primary address by signing and submitting the form.
From January, 2016, to April, 2016, A.O. testified that appellant visited her address
to help with the children; she said that “h e wouldn’t be there in the morning most of the
time when [she ] would get up for work or on the weekends.” At the end of May , 2016,

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A.O. asked appellant to help with the children . She testified that appellant would usually
stay over on the weekend for Friday, Saturda y, and sometimes Sunday nights. Appellant
had access to A.O.’s house when she was not there. Appellant did not receive mail or keep
his clothes at A.O.’s house. Near A.O.’s address, many cars were parked on the side of the
road; when appellant was there , he parked his car behind the house because it l eaked oil
and A.O. did not want him to park in the driveway or garage.
Between March 16 and 25, 2017, Brainerd police officers stopped three times at
appellant’s registered primary address in an attempt to complete a registration check. On
each occasion , appellant’s mother answered the door, appellant was not there, and the
officers requested that appellant contact them regarding registration. Additionally, on each
day that the police visited appellant’s registered primary address, police officers drove past
A.O.’s address in an attempt to locate appellant. Between March 22 and March 25, 2017,
during daytime, evening, and overnight hours , police officer s drove by appellant’s
registered primary address in an attempt to complete the registration check , but they had
no success.
After March 25 , 2017, several police officers continued to look for appellant by
driving by both addres ses in search of his vehicle. On March 26, 201 7, appellant was
arrested on a probation violation warrant at A.O.’s address. His car was parked behind the
house. Appellant waived his jury trial rights, and the district court found him guilty. This
appeal follows.

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D E C I S I O N
Appellate courts apply “the same standard of review in bench trials and in jury trials
in evaluating the sufficiency of the evidence. ” State v. Palmer , 803 N.W.2d 727, 733
(Minn. 2011). This court determines whether the district court “could reasonably conclude
that the defendant was guilty of the offense charged. ” State v. Landa , 642 N.W.2d 720,
725 (Minn. 2002). We must assume that the factfinder believed the state’s witnesses and
disbelieved contradicting evidence. Id.
Direct evidence is based on personal knowledge or observation and, if true, proves
a fact without inference or presumpt ion. State v. Harris, 895 N.W.2d 592, 599 (Minn.
2017) (quotation omitted) . Circumstantial evidence , however, always requires an
inferential step to prove a fact; furthermore, it i s “evidence from which the fact finder can
infer whether the facts in dispu te existed or did not exist.” Id. (quotation omitted).
Appellate courts determine “whether a reasonable inference inconsistent with guilt can be
drawn [to make certain] that there is no reasonable doubt as to the defendant’s guilt. ” Id.
at 601.
When a sufficiency-of-the-evidence claim involves the question of whether the
defendant’s conduct meets the statutory definition of an offense, an appellate court is
presented with a question of statutory interpretation. See State v. Colvin, 645 N.W.2d 449,
451-52 (Minn. 2002) (reviewing de novo whether the appellant’s intent to violate an OFP
fulfills the intent requirement in the burglary statute). “The interpretation of the predatory
sex-offender registration statute, like interpretation of all statutes, is a question of law

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which we review de novo.” In re Welfare of J.R.Z. , 648 N.W.2d 241, 247 (Minn. App.
2002).
Minn. Stat. § 243.166, subd. 3 (2016), registration procedure, provides:
Except as provided in subdivision 3a, at least five days before the person
starts living at a new primary address, . . . the person shall give written notice
of the new primary address to the assigned corrections a gent or to the law
enforcement authority. . . . A person required to register under this section
shall also give written notice . . . that the person is no longer living or staying
at an address, immediately after the person is no longer liv ing or staying at
that address.

Persons who are required to register must do so upon being sentenced or released
from incarceration. State v. Nelson, 812 N.W.2d 184, 187 (Minn. App. 2012). The person
“shall register with the corrections agent as soon as the agent is assigned to the person .”
Id. (quoting Minn. Stat. § 243.166, subd. 3). “If the person does not have an assigned
corrections agent . . . , the person shall register with the law enforcement authority that has
jurisdiction in the area of the person’s prima ry address.” Id. (quoting Minn. Stat.
§ 243.166, subd. 3). “After initial registration, a person who is required by section 243.166
to register must give notice” when they move to a new primary address. Id. at 188.
This duty to provide notice has two parts. Id. “The first part of the duty arises under
the first sentence of subdivision 3(b) of section 243.166, which requires the person to give
advance notice of the new primary address to which the person plans to move.” Id. The
person must give this notice “at least five days before the person starts living at a new
primary address .” Id. “The second part of the duty arises under the third sentence of
subdivision 3(b) of section 243.166.” Id. This requires a person who has already given
notice under the first sentence of subdivision 3(b) to “also give written notice . . . that the

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person is no longer living or staying at the previously registered primary address.” Id.
(quotation omitted). This notice must also be given “to the assigned correction agent or to
the law enforcement authority that has jurisdiction in the area of the person’s primary
address . . . immediately after the person is no longer staying at that address.” Id.
(quotations omitted).
Subdivision 3a of section 243.166 addresses a person who plans to leave his current
primary address but has no existing plan to establish a new primary address. Minn. Stat.
§ 243.166, subd. 3a(a) (2016), provides:
If a 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 the person no longer has a primary address.

Here, appellant argues that the evidence was insufficient to convict him of violating
Minn. Stat. § 243.166, subd. 3(b), because the state failed to prove that he had a new
primary address; therefore, it was not proven beyond a reasonable doubt that appellant
failed to r egister his new primary address. W e agree. The record contains no direct
evidence that appellant had a new primary address; any evidence indicating this reasonable
inference was circumstantial. There is, however, evidence supporting an al ternative
inference that appellant did not have a new primary address. Appellant’s handful of
absences from his registered address and mere presence at A.O.’s address do not prove
beyond a reasonable doubt that appellant had a new primary address. Furthermore, the
district court did not find that appellant had a new primary address; therefore, it may not
reasonably conclude that appellant is guilty of violating subdivision 3(b).

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The circumstances of the current case are analogous to those in Nelson. 812 N.W.2d
at 184. In Nelson, the owner of the home at Nelson’ s registered primary address had
recently moved away. Id. at 186. On February 9, 2010, a police officer could not see
anyone at Nelson’s registered primary address, no one had shoveled new-fallen snow from
Nelson’s registered primary address, no one had made any footprints or other tracks in the
new-fallen snow outside the home, and Nelson was in the state of Texas. Id. Nelson was
charged and convicted for violating Minn. Stat. § 243.166, subd. 3(b) (2008). Id. However,
on appeal, this court concluded that while the circumstances in Nelson were consistent with
guilt, they were also “equally consistent with three reasonable inferences that Nelson did
not fail to register a new primary address at least five days before he started living at a new
primary address.” Id. at 190 (emphasis in original). The circumstantial evidence in Nelson
did not exclude beyond a reasonable doubt any reasonable inference other than guilt . Id.
Nelson was “required by section 243.166 [subdivision 3a] to register, but that requirement
springs from a subdivision other than subdivision 3(b) . . . the statutory basis of Nelson’s
charge,” and “[t]he state did not attempt to prove that Nelson had violated the requirements
of subdivision 3a.” Id. at 189. Therefore, this court reversed Nelson’s conviction for
insufficient evidence. Id. at 190.
In its brief, the state mentions that appellant ’s defense to Count I, the subdivision
3(b) offense, is a plausible inference that appellant committed an uncharged subdivision
3a(a) violation instead of the charged offense. However, the state did not charge appellant
with a violation of subdivision 3a(a). Instead, the statutory basis of the state’s charge was
subdivision 3(b). “It is ancient doctrine of both the common law and of our Constitution

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that a defendant cannot be held to answer a charge not contained in the indictment brought
against him.” State v. Gisege, 561 N.W.2d 152, 156 ( 1997) (quoting Schmuck v. United
States, 489 U.S. 705, 717, 109 S. Ct. 1443, 1451 (1989)).
For charges based on Minn. Stat. § 243.166, subd. 3(b), it is the state’s burden to
prove beyond a reasonable doubt not only that the person who is required to register was
no longer living at his registered primary address, but also that the person required to
register had started living at a new primary address and failed to give advanced notice
before doing so. Nelson, 812 N.W.2d at 190.
Reversed.