State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0231

State of Minnesota,
Respondent,

vs.

Jeremy Shane Zimmermann,
Appellant.

Filed March 4, 2019
Affirmed in part, reversed in part, and remanded
Florey, Judge

Scott County District Court
File No. 70-CR-15-23903

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Schellhas, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant Jeremy Shane Zimmermann asks this court to reverse his two felony
convictions for failing to register as a predatory offender in violation of Minn. Stat.
§ 243.166 (2014). We affirm in part, reverse in part, and remand.
FACTS
Appellant is required by law to register as a predatory offender. In December 2011,
he was convicted of violating his registration requirements. After serving time for the
conviction of failure to register, as well as two additional unrelated convictions, appellant
was released from prison in October 2015. Shortly after appellant was release d from
prison, he changed his registered primary addres s from a residence in St. Paul to
“Homeless” in St. Paul . However, in early December 2015, officers suspected appellant
was staying with friends or family at an unregistered Shakopee address in Scott County.
Officers’ investigation of appellant’s whereabouts led them to speak with
appellant’s girlfriend and mother, both Shakopee residents. Appellant’s girlfriend, T.A.B.,
reported to Detective Jim Blatzheim of the Shakopee Police Department that she resided
in Shakopee, and that, since the time appellant had been released from prison in October
2015, he had been staying overnight at her house a couple of days per week. T.A.B. stated
that she told appellant she believed he was required to register in Scott County. She also
reported to Detective Blatzheim that appellant had his mail delivered to her house, and she
provided the detective with samples of mail addressed to appellant at T.A.B.’ s Shakopee

3
address. Detective Blatzheim later discovered that appellant’s listed address on his driver’s
license was T.A.B.’s residence.
Appellant’s mother, S.J.S., denied that appellant lived at her residence, but reported
to Detective Blatzheim that he occasionally spent the night at her place sleeping on an air
mattress. She reported that the last time he stayed the night was the prior weekend, and
that he also “stay[ed] at his girlfriend’s.”
On December 17, 2015, officers located appellant at a workforce center in Shakopee
and placed him under arrest for violating his registration requirements. The Scott County
Attorney’s Office charged appellant with two felony counts of violating Minn. Stat.
§ 243.166, sub d. 5(a), Predatory Offender —Knowingly Vio lates Registration or
Intentionally Provides False Information.
In February 2016, appellant ple aded guilty to count one , and, shortly thereafter,
moved the district court to withdraw his plea. The district court denied his motion. In a
separate appeal be fore this court, we reversed an d remanded. Zimmerman v. State, No.
A16-1261, 2017 WL 475953 (Minn. App. Feb. 6, 2017).
In May 2017, appellant appeared back before the district court to address the status
and schedule of his case going forward in light of his plea withdrawal . At the hearing,
appellant discharged his public defender and elected to represent himself . During
subsequent hearings before the district court, appellant requested, and the court denied, the
appointment of advisory coun sel. Leading up to trial, appellant continuously wavered
between wanting to be represented and wanting to represent himself. Appellant ultimately

4
chose to represent himself, and th e district court found that appellant’s waiver of
representation by counsel was knowing, intelligent, and voluntary.
While appellant was in custody leading up to his trial, he made several calls to
T.A.B. during which he tried to persuade her to lie under oath:
Appellant: I need, I need your loyalty here and I need you to
have my back, but, if they call you in [to] testify,
all you have to say is, you know, I didn’t, I didn’t
spend the night. I mean, it’s just that simple, you
know? Yeah, I visited you twice a week, but I
didn’t spend the night, you know? Because, if
you say that, I’m gonna go, you know? I’m
gonna get fried . . . .
. . . .

T.A.B.: I mean, I’m not gonna lie, so —I’m not gonna
say, you know, I mean, you weren’t living here,
but yes, you were staying here, so, and you know
that. And I’m not gonna lie about it. So—
. . . .

T.A.B.: I already told them that you were here and
staying. If you would’ve f -cking told me what
was going on to begin with, I could’ve sa id
something different. But I f-ck, I told them the
truth. I didn’t know what the f-ck was going on.
. . . .

Appellant: I know, it’s just simple that I didn’t spend the
night. It’s okay if I came over there and stayed—

T.A.B.: Yeah, you did, too, you f—

. . . .

Appellant: I just ne ed you to be on my team, you know. I
know that I did stuff that, you know, that, you
know, what it’s gonna come down to is if I spent
the night, it’s gonna end up f -cking me. So, I

5
mean, you just have, stop, I stopped by during
the night a couple of times, you know? Hello?
. . . .

Appellant: You could just say that I, you could just say that
I stopped, stopped by a couple of times during
the night, but I never spent the night or slept over
at your house, you know? That’s the thing. It’s
gonna, because oth erwise, it’s gonna f -ck
me . . . .

In September 2017, a jury trial was held. Several officers, as well as appellant’s
case manager, testified to appellant’s registration requirements as a predatory offender, and
the state offered into evidence appellant ’s signed and initialed acknowledgements of his
obligation to register . St. Paul Police Officer Lynette Cherry testified that, shortly after
appellant was released from prison, he changed his regist ered address as homeless in
St. Paul, and maintained that this was his primary address up until he was arrested. Officer
Cherry testified:
I asked [appellant] if there was any other location that
he would be, especially during the hours of nighttime when you
were—when you are sleeping that he was staying, any other
intersections, places, things like that that he was staying during
the week or in the upcoming days for that week. And he said
no. He was staying every night [in his vehicle] at the Walmart
parking lot in St. Paul.

Because Officer Cherry suspected that appellant was staying at his girlfriend’s or mother’s
residence in Shakopee, she testified that she had suggested to him that he register those
addresses:
I had asked [appellant] if he wanted to register or write
down on his homeless check-ins any address he was staying at
in Shakopee, you know, just to be compliant. And he said no.
He was only going to be staying at the Walmart parking lot.

6
Detective Blatzheim also testified at trial. He testified to what T.A.B. and S.J.S.
had reported to him, that appellant’s listed address on his driver’s license was T. A.B.’s
residence in Shakopee and that appellant had never registered with the Shakopee Police
Department.
T.A.B. also testified. She testified that she resided in Shakopee and that, from the
time appellant was released from prison in October 2015 until he was arrested in December
2015, appellant “would come and stay” at her residence approximately “two, three times a
week.” She explained that he would “come at night and stay until the next morning,” and
that, at times, he would “stay consecutive nights.” She testified that appella nt received
mail at her residence in Shakopee, and that he kept “[c]lothes, papers, [and a] few boxes of
stuff” there. During T.A.B.’s testimony, the s tate offered into evidence two pieces of
appellant’s mail addressed to T.A.B.’s home. T.A.B. testified that she had suggested to
appellant that he register in Scott County.
The state also offered into evidence audio recordings of ap pellant’s phone calls to
T.A.B. in which he asked T.A.B. to testify that he did not spend the night at her residence.
T.A.B. testified that she believed appellant made those calls “[t]o try to get [her] to lie and
say that he didn’t stay at [her] house when he did.” Appellant called several witnesses of
his own and also testified in his own defense.
Before jury deliberation, appellant requested that the district court use a dictionary
definition of “stay,” which indicated an individual stays somewhere if he “remain[s] in a
fixed location for an extended period of time.” Appellant argued, “I mean, my whole
argument is that, yeah, I did visit. But I was only over there for a few hours.” The district

7
court denied appellant’s request, stating that it would instruct the jury that “[i]f [it] [has]
not defined a word or phrase, [the jury] should apply the common, ordinary meaning of
that word or phrase.” Appellant was found guilty of both counts of violating his registration
requirements.
In appellant’s presentence i nvestigation (PSI) report, probation recommended that
appellant be sentenced to 43 months. The PSI noted appellant’s “lengthy criminal history
including 20 prior felony convictions as well as numerous misdemeanors.” It also stated:
“Since [appellant] was previously released from prison as a risk level three, a 10 year period
of conditional release applies.”1
The district court sentenced appellant to 39 months ’ imprisonment for count one
and imposed a 10 -year conditional -release term. The district court did not formally
adjudicate appellant on count two. Appellant objected to the district court’s imposition of
the 10-year conditional-release term, explaining that he was actually a level -two offender
and offered to show the district court paperwork confirming this to be true. 2 The district
court rejected appellant’s contention and imposed the 10 -year conditional-release term.
This appeal follows.

1 Minn. Stat. § 243.166, subd. 5a, mandates the court to impose a 10 -year conditional-
release term for violations committed by level-three offenders.
2 Appellant’s End of Confinement Review (ECRC) Risk Assessment Report, dated May
20, 2010, recommended appellant receive a risk-level three, however, the report assigned
appellant a risk-level two.

8
D E C I S I O N
I. The district court did not abuse its discretion by rejecting appellant’s requested
jury instruction on the definition of “staying.”

Appellant argues that the district court abused its discretion by denying his request
for a jury instruction defining the term, “staying.” He contends that the term was “an
essential element of the crime of failure to register,” and because the term is “s ubject to
many meanings,” the jury instructions misled the jury a nd caused it to “speculate” on the
meaning of the element.
Before trial, appellant requested that the district court use a dictionary definition of
stay, explaining that “the definition of st ay says that you remain in a fixed location for an
extended period of time.” The district court denied appellant’s request, explaining that the
term, “stay,” is “used in everyday life” and “not so complicated that we need [a] definition[]
for [it].” The court told appellant, “I’m not going to prohibit you from telling the jurors
what at least you think those terms mean.” Accordingly, the court instructed the jury, “If
I’ve not defined a word or a phrase, you should apply the common, ordinary m eaning of
that word or phrase.”
“The district court enjoys considerable latitude in selecting jury instructions,
including the specific language of those instructions.” State v. Peltier, 874 N.W.2d 792,
797 (Minn. 2016). “The decision to give a requested jury instruction lies in the discretion
of the trial court and will not be reversed absent an abuse of that discretion. ” State v.
Palubicki, 700 N.W.2d 476, 487 (Minn. 2005). Appellate courts “review the jury
instructions as a whole to determine whether the i nstructions accurately state the law in a

9
manner that can be understood by the jury.” State v. Kelley, 855 N.W.2d 269, 274 (Minn.
2014). The appellant bears the burden of demonstrating that the district court abused its
discretion, and in order to be gra nted a new trial, the appellant must show that the abuse
was prejudicial to the outcome of the case. State v. Nunn, 561 N.W.2d 902, 907 (Minn.
1997). A district court abuses its discretion “if the jury instructions confuse, mislead, or
materially misstat e the law.” State v. Onyelobi , 879 N.W.2d 334, 353 (Minn. 2016)
(quotation omitted).
In the case before us, the district court did not abuse its discretion. Instructing the
jury to “apply the common, ordinary meaning” of “stay” does not confuse, mislead, or
materially misstate the law. While a juror may interpret “stay” to mean “visit,” rather than
“remain in a fixed location for an extended period of time,” appellant’s case manager as
well as Detective Blatzheim both testified that even a routine or regular “visit” may trigger
an offender’s obligation to register. Further, appellant’s own understanding that “stay,” in
the context of the registration statute, means occasionally spending the night, rather than
“remain[ing] in a fixed location for an extended period of time,” was clearly demonstrated
by the content of his witness tampering calls to T.A.B. Appellant is not entitled to a new
trial on this claim.

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II. There was sufficient evidence for the jury to find appellant guilty of both counts
of failure to register as a predatory offender.

A. The s tate proved beyond a reasonable doubt that appellant was
“staying” in Scott County.

Appellant argues that his two felony convictions 3 for failure to registe r must be
reversed because the s tate presented insufficient evidence to prove that he was “staying”
in Scott County. He contends that the plain language of Minn. Stat. § 243.166, subd. 3a(c),
requires offenders to register only in jurisdictions where they have established a continuing
presence for 24 hours. According to appellant, he was not required to register in Scott
County because “the evidence showed that while he spent the night at [T.A.B.’s]
residence,” he was always there for less than 24 hours.
In addressing a sufficiency -of-the-evidence claim, we must determine “ whether a
jury could reasonably conclude that the defendant was guilty of the offense charged.” State
v. Landa, 642 N.W.2d 720, 725 ( Minn. 2002). “We will view the evidence in the light
most favorable to the verdict and assume that the factfinder disbelieved any testimony
conflicting with that verdict.” State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011)
(quotation omitted).

3 We note that, while the jury found appellant guilty of both counts, the district court
expressly stated at sentencing that it would not formally adjudicate or sentence appellant
on count two. Thus, while we need not address whether there was sufficient e vidence for
the jury to find appellant guilty of count two, we nevertheless do so for completeness. See
State v. Ashland , 287 N.W.2d 649, 650 (Minn. 1979) (“We need not decide whether the
evidence also was sufficient to support convictions on the other tw o counts . . . because
defendant was not sentenced for either of them and the prosecutor concedes that defendant
was never formally adjudicated of these two counts.”).

11
If the claim involves the question of whether the appellant’s conduct satisfies the
statutory definition of an offense, we are presented with a question of statutory
interpretation. See State v. Colvin, 645 N.W.2d 449, 451-52 (Minn. 2002); see also State
v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013). “The interpretation of the predatory sex -
offender registration statute, like interpretation of all statutes, is a question of law which
we review de novo.” In re Welfare of J.R.Z. , 648 N.W.2d 241, 247 (Minn. App. 200 2),
review denied (Minn. Aug. 20, 2002).
Minn. Stat. § 243.166, subd. 3a(c), provides:
A person who lacks a primary address shall register with
the law enforcement authority that has jurisdiction in the area
where the person is staying within 24 hours aft er entering the
jurisdiction. Each time a person who lacks a primary address
moves to a new jurisdiction without acquiring a new primary
address, the person shall register with the law enforcement
authority that has jurisdiction in the area where the perso n is
staying within 24 hours after entering the jurisdiction.

The elements of appellant’s failure -to-register offense are that (1) he is a person
required to register as a predatory offender; (2) he knowingly violated any of the
requirements to register; (3) the time period during which he was required to register has
not elapsed; and (4) his act or failure to act took place in Scott County during the time
period in question. See Minn. Stat. § 243.166.
On appeal, appellant concedes that , during the time period in question, “[he] was
required to register.” For the second element, the state was required to prove that appellant
knowingly violated the requirement that, if he lacked a primary address, he had to “register

12
with the law enforcement authority that has jurisdiction in the area where [he] is staying
within 24 hours after entering the jurisdiction.” Minn. Stat. § 243.166, subd. 3a(c).
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude
there was sufficient evidence to permit the jurors to find appellant guilty of failing to
register in Scott County within 24 hours of entering the jurisdiction. At trial, the state’s
witnesses testified that the registratio n requiremen ts were explained to appellant, that
appellant acknowledged his understanding of those requirements, and that appellant was
encouraged, both by Officer Cherry and by T.A.B., to register in Shakopee. T.A.B.
testified that, following appellant’s release from prison, he would spend the night at her
home two to three nights a week, and that appellant had his mail delivered to , and kept
some of his belongings at, her residence. Furthermore, the content of appellant’s jail calls
to T.A.B. demonstrate that appellant knew that spending the night at her home in Shakopee
violated his registration requirements.
We have previously rejected appellant’s argument that “staying,” in subdivision
3a(c), means “a continuing presence for 24 hours.” In State v. Pederson, No. A14-1849,
2015 WL 5089026, at *3 (Minn. App. Aug. 31, 2015), review denied (Minn. Oct. 28, 2015),
we concluded:
[T]his interpretation defeats the primary purpose of the
predatory-offender-registration statute, which is “to create a
sexual-offender registry to assist law enforcement with
investigations.” State v. Ulrich , 829 N.W.2d 429, 430 (Minn.
App. 2013). Under this interpretation, persons required to
register could escape from ever h aving to register by moving
to a different jurisdiction every 23 hours. This type of loophole
was not the legislature’ s intention. See Minn. Stat. § 645.16

13
(2014) (stating that the objective of statutory interpretation is
to “ascertain and effectuate the intention of the legislature”).

We conclude that the state proved beyond a reasonable doubt that appellant was
“staying” in Scott County and failed to register pursuant to Minn. Stat. § 243.166, subd.
3a(c).
B. The state proved beyond a reasonable doubt that appellant was required
to register a “secondary address” in Scott County.

Appellant argues that count tw o must be reversed because the s tate presented
insufficient evidence that he was required to register a seco ndary address. He contends
that “[t]he plain language of the registration statute is clear —the existence of a secondary
address is conditioned on . . . having a primary address.” According to appellant, because
he was homeless, he did not have a primary address, and consequently, “there is [no]
‘secondary address’ that requires registration.”
We conclude that there was sufficient evidence to permit the jurors to find appellant
guilty of failing to register a secondary address. Minn. Stat. § 243.166, subd. 4a (a)(2),
provides that a person required to register as a predatory offender must “provide to the
corrections agent or law enforcement authority . . . all of the person’s secondary addresses
in Minnesota, including all addresses used for residential or recreational purposes.” Minn.
Stat. § 243.166, subd. 1a(i), defines a “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.”
The statute defines “ primary address” as “the mailing address of the person’s
dwelling” or “the physical location of the dwelling described with as much specificity as

14
possible.” Minn. Stat. § 243.166, subd. 1a(g). We acknowledge that the statutory
definition of “dwelling” uses the word, “building.” Minn. Stat. § 243.166, subd. 1a(c)
(“‘Dwelling’ means the building where the person lives under a formal or informal
agreement to do so.”). However, the fact t hat appellant was living out of his car in a
St. Paul parking lot several days a week—rather than in a house, apartment, trailer, or some
other type of building—should not permit him to bypass the registration requirements of a
predatory offender.4 Indeed, Officer Cherry and appellant’s case manager both testified at
trial that, regardless of whether or not the offender is registered as homeless, the offender
is still required to register any secondary addresses. To permit otherwise would, no doubt,
undermine the purpose of the registration statute, which is “ to keep law enforcement
informed as to a predatory offender’s whereabouts.” Kaiser v. State, 641 N.W.2d 900, 907
(Minn. 2002); see also State v. LaFountain, 901 N.W.2d 441, 450 (Minn. App. 2017) (“The
Minnesota Supreme Court has emphasized that the registration statute reflects a policy that
society has the right to know the location of predatory offenders, not in order to punish
them, but to protect the public.”), review denied (Minn. Oct. 25, 2017); State v. Ulrich, 829
N.W.2d 429, 430 (Minn. App. 2013) (“The primary purpose of section 243.166 is to create
a sexual-offender registry to assist law enforcement with investigations.”).

4 In a recent case, we affirmed the defendant’s conviction for failing to update his primary
address as living out of his vehicle in a new jurisdiction. State v. Pugh , No. A17-0598,
2018 WL 1787959 (Minn. App. Apr. 16, 2018).

15
III. The district court did not abuse its discretion by denying appellant’s request
for substitute counsel.

Appellant argues that he is entitled to a new trial because the district court abused
its discretion by summarily denying his requests for a different attorney. A district court’s
decision of whether to appoint substitute counsel is reviewed under an abuse-of-discretion
standard. State v. Clark, 722 N.W.2d 460, 461 (Minn. 2006); State v. Gillam, 629 N.W.2d
440, 449 (Minn. 2001) . Criminal defendants have a constitutional right to counsel. U.S.
Const. amend. VI; Minn. Const. art. I, § 6. However, an indigent defendant does not have
an “unbridled right to be represented by counsel of his own choosing.” State v. Fagerstrom,
176 N.W.2d 261, 264 (Minn. 1970).
“When a defendant raises complaints about the effectiveness of appointed counsel’s
representation and requests substitute counsel, the district court must grant such a request
only if exceptional circumstances exist and the demand is timely and reasonably made.”
State v. Munt , 831 N.W.2d 569, 586 (Minn. 2013) (quotation omitted). Exceptional
circumstances “are those that affect a court -appointed attorney’s ability or competence to
represent the client.” Gillam, 629 N.W.2d at 449. “When the defendant voi ces serious
allegations of inadequate representation, the district court should conduct a searching
inquiry before determining whether the defendant’s complaints warrant the appointment of
substitute counsel.” Munt, 831 N.W.2d at 586 (quotation s omitted). The district court’s
“decision is to be based on the facts and circumstances surrounding the request.”
Fagerstrom, 176 N.W.2d at 264.

16
In the case before us, the district court did not abuse its discretion by denying
appellant’s request for substitute co unsel. Although appellant argues that he was entitled
to a “searching inquiry” by the district court, the allegations about his court -appointed
attorney that he presents on appeal are similar concerns that he voiced before the district
court. Our review of the record indicates that appellant voiced these concerns to the district
court in several different hearings, and none of appellant’s frustrations with his attorney
constituted “serious allegations .” Munt, 831 N.W.2d at 586. Indeed, what appellant’s
frustration boiled down t o was his inability to control his attorney’ s trial strategy. In a
discussion between the district court and appellant regarding his frustrations with his
counsel, the court explained:
I do not allow, nor does any other judge in Scott County,
allow PD shopping. And I know what your thoughts are about
feeding them. But they are responsible for their own license.
So they can [sic] have somebody in their ear telling them what
to do the whole time. But you are not trained in the law. And
so they are going to do it their way. You may like it. You may
hate it. You may think they’re ineffective. You may think they
don’t care about you. They might not ask the questions that you
want them to ask because they know they’re not allowed to or
it doesn’t help them form a strategy. They’re not going to
simply be a puppet for you . . . .

While the district court did not abuse its discretion by denying appellant’s request
for substitute counsel, the court made some inappropriate remarks, stating, for example:
Would you like [counsel] to remain as your lawyer here
today? . . . If the answer is no, I’m going to discharge the
public defender’s offic e. And once you lose the public
defender’s office, I’m not reinstating her. I’m not putting a new
public defender in. We’re done, period.
. . . .

17
[Appellant], my question to you was whether or not you
want to make a decision today whether to fire your l awyer
indicating that if you do that, we’re never coming back from
that. Okay. I’m not going to reappoint her. We’re done. And
then your choices are hire your own lawyer or represent
yourself through the pendency of trial.

It “is not an accurate statement of the law” to inform a cr iminal defendant that “he
c[an]not have a different public defender under any circumstances.” State v. Lamar, 474
N.W.2d 1, 3 (Minn. App. 1991) , review denied (Minn. Sept. 13, 1991) . However, based
on the record as a whole —which demonstrates that the district court provided appellant
numerous opportunities to expand on the reasons he wanted a different attorney and that
the court gave much attention to and consideration of appellant’s voiced concerns —we
conclude that the district court’s denial of substitute counsel was not an abuse of discretion.
IV. The district court improperly imposed a 10-year conditional-release term, and
therefore, appellant’s case should be remanded.

Appellant argues that his 10-year conditional-release term “is unauthorized by law
and must be vacated.” He contends that the proper remedy is to vacate the term because
“subjecting [him] to a resentencing trial at which the state would be allowed to prove to a
jury the fact necessary to support imposition of the 10-year conditional release term would
violate the prohibition against double jeopardy.”
In State v. Her , the supreme court held that a district court may n ot impose a 10 -
year conditional-release term for a conviction of failing to register as a predatory offender
absent a jury’s finding or the defendant’s a dmission that he was a level -three offender at
the time of the violation. 862 N.W.2d 692, 693 (Minn. 2015). The supreme court stated
that it was leaving it to the district court to determine the proper remedy on remand. Id. at

18
700-01 n.4 (citing Hankerson v. State, 723 N.W.2d 232 (Minn. 2006) and State v. Jones,
659 N.W.2d 748 (Minn. 2003)).
In Hankerson, the supreme court explained that the Double Jeopardy Clause of the
United States Constitution “protects criminal defendants from three distinct abuses: (1) a
second prosecution for the same offense after acquittal; (2) a second prosecution for the
same offense after conviction; and (3) multiple punishments for the same offense.” 723
N.W.2d at 236 -37 (quotation omitted). The Hankerson court explained, “a second
prosecution can occur only after jeopardy from the first prosecution has terminated.” Id.
at 237 (quotation marks omitted). “[J]eopardy does not terminate unless the fact finder
affirmatively rejects the existence of aggravating factors in a manner that can fairly be
called an ‘acquittal’ on those factors.” Id.
While we agree with appellant that the district court improperly imposed a 10 -year
term of conditional release, we reject appellant’s argument that the proper remedy is to
vacate the term. Appellant argues that “the state presented insufficient evidence” to
support the district court’s imposition of a 10 -year conditional-release term. However,
based on the record , it appears that the state presented no evidence on this point,
presumably because the district court indicated that appellant’s level-three status would be
“put to a jury after a verdict on the elements.” (Emphasis added.)
Because the record is absent of any indication that the jury “affirmatively reject[ed]”
evidence regarding appellant’s risk-level status—again, presumably because the state was
not given the opportunity to present such evidence—we conclude that remanding the case
to the district court would not subject appellant to a “second prosecution.” Hankerson, 723

19
N.W.2d at 237. As such, we remand the case to the district court for further proceedings
consistent with this decision. On remand, the district court may empanel a sentencing jury
to determine whether appellant was a level -three predatory offender when he committed
the offense, or the district court may obtain appellant’s express waiver of a sentencing jury.
Affirmed in part, reversed in part, and remanded.