Shawn Richard Burrington, petitioner, Appellant,

This opinion will be unpublished and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
A18-2013

Shawn Richard Burrington, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 15, 2019
Affirmed
Jesson, Judge

Sherburne County District Court
File No. 71-CR-17-859

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

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

Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Considered and decided by Sche llhas, Presiding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Shawn Richa rd Burrington pleaded guilty to aggravated robbery and
reported to prison to begin his sentence. But upon his arrival , prison staff informed

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Burrington that because he was al so charged with attempted kidnapping, he was required
to register as a predatory offe nder, a fact never discussed wit h him previously. In this
appeal from the denial of his postconviction petition, Burrington argues that he should not
be required to register as a predatory offender because the charge requiring registration—
attempted kidnapping—was not supp orted by probable cause. But we conclude that
probable cause supported the attempted-kidnapping charge, and therefore we affirm.
FACTS
In the early morning hours on May 5, 2017, appellant Shawn Ric hard Burrington
went to HiTech Motorsport before the store was open. Burrington, wearing a red bandana
over his face and carrying a pillo wcase and duct tape, approach ed the store owner, who
was in the process of opening the store. Burrington attacked the store owner from behind.
He then forced the owner inside the store. Once inside, Burrin gton and the store owner
struggled, and Burrington unsuccessfully attempted to put the p illowcase over the store
owner’s head and place duct tape over his mouth.
Eventually, the store owner forced Burrington outside the stor e. Burrington then
demanded that the store owner give him money, and the store owner gave him about $700.1
Burrington fled. The store owner called the police, and when they arrived, they discovered
a pillowcase and piece of duct tape inside the store and a roll of duct tape outside the store.
A fingerprint recovered from the piece of duct tape matched Bur rington’s fingerprint.

1 The district court order and complaint state that the amount of money stolen equaled $700,
but the store owner filed an affidavit seeking restitution alle ging that $1100 in cash was
taken.

3
Police arrested Burrington, who told police that he had been ne arly homeless and needed
money. Burrington admitted to going to the store, and explaine d that he brought the
pillowcase and duct tape with him to subdue the store owner so that he could flee after the
robbery.
The state charged Burrington with first-degree aggravated robb ery, simple robbery,
and fifth-degree assault, and later amended the complaint to ad d a charge of attempted
kidnapping.
2 Pursuant to a plea agreement, w hich indicated that all other charges would
be dismissed, Burrington pleaded guilty to aggravated robbery. The district court
sentenced Burrington to an executed term of 90 months in prison . Predatory offender
registration was not discussed during the plea or the sentencing hearings.
When Burrington reported to prison, officials told him that he must register as a
predatory offender because he had been charged with attempted kidnapping and convicted
of another offense arising from the same set of circumstances. Burrington filed a
postconviction petition seeking relief from the obligation to r egister as a predatory
offender. The district court denied Burrington’s petition, rea soning that the
attempted-kidnapping charge was supported by probable cause. Burrington appeals.
D E C I S I O N
Burrington argues that he should not be required to register as a predatory offender
because the attempted-kidnapping charge was not supported by pr obable cause.
Specifically, Burrington contends that the actions which formed t h e b a s i s f o r t h e

2 The district court signed the a mended complaint, which include d a finding of probable
cause.

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attempted-kidnapping charge were incidental to the aggravated r obbery and thus not
criminally significant. We review the denial of a petition for postconviction relief for an
abuse of discretion but review legal issues de novo. Matakis v. State, 862 N.W.2d 33, 36
(Minn. 2015). On the issue of probable cause, we review factua l findings for clear error
but review the application of the legal standard de novo. State v. Lopez, 778 N.W.2d 700,
703 (Minn. 2010).
Under Minnesota Statutes secti on 243.166, subdivision 1b(a)(1)(ii) (2016), persons
charged with attempted kidnapping are required to register as p redatory offenders if they
are “convicted of or adjudicated delinquent for that offense or another offense arising out
of the same set of circumstances.”3 But in order to trigger the registration requirement, the
charge must be supported by probable cause. State v. Haukos, 847 N.W.2d 270, 274 (Minn.
App. 2014).
Probable cause to support a charge “exists where the facts wou ld lead a person of
ordinary care and prudence to entertain an honest and strong su spicion that the person
under consideration is guilty of a crime.” State v. Carlson , 267 N.W.2d 170, 173
(Minn. 1978). But evidence required to support a finding of probable cause is significantly
less than the evidence required to support a conviction. State v. Harris, 589 N.W.2d 782,
790 (Minn. 1999). And “[u]nlike proof beyond a reasonable doub t or preponderance of
the evidence, probable cause requires only a probability or sub stantial chance of criminal
activity, not an actual showing of such activity.” Id. at 790-91 (quotation omitted). And it

3 Burrington does not dispute that he was convicted of aggravate d robbery and that the
attempted-kidnapping charge was an offense arising out of the same circumstances.

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is the judiciary’s determination of probable cause—not simply a prosecutor’s filing of a
charge—that triggers the registration requirement. Haukos, 847 N.W.2d at 273. If a
district court determines that the charge triggering the regist ration requirement is not
supported by probable cause, it may relieve an individual of the registration obligation. Id.
at 274.
Attempted kidnapping requires that an individual attempt to “confine[] or remove[]
from one place to another, any person without the person’s cons ent” for one of the
enumerated reasons, including “to facilitate commission of any felony or flight thereafter.”
Minn. Stat. § 609.17, subd. 1 ( defining attempt), .25, subd. 1( 2) (2016). Here, the
postconviction court concluded th at probable cause supported th e attempted kidnapping
charge. It noted that Burringt on had a pillowcase and duct tap e with him and that “his
attempt to place the pillowcase over [the store owner’s] head and tape his mouth establishes
an attempt to confine [him].” Further, the postconviction court determined that the “force
and coercion” that formed the ba sis for the attempted kidnappin g was different than the
“force and coercion” that supported the conviction for aggravated robbery.4 We agree.
We begin our analysis by noting that the evidence required to find probable cause
is significantly less than what is required to support a convic tion. Harris, 589 N.W.2d at

4 Further, even though the postconviction court analyzed Burring ton’s petition, it also
determined that he waived any challenge to probable cause durin g his plea. We do not
decide the question of whether B urrington waived his ability to challenge probable cause
in a postconviction proceeding, an issue the state does not raise on appeal. Nor do we reach
the question of whether a postconviction petition is the proper mechanism for challenging
predatory offender registration requirements.

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790. The undisputed facts here establish that Burrington took a pillowcase and duct tape
with him, intending to use them to flee the store after he robb ed it. Further, Burrington
attempted to confine the store owner by placing the pillowcase over his head and covering
his mouth with duct tape. These facts show that Burrington attempted to confine the store
owner for the purpose of facilitating the commission of the aggravated robbery. See Minn.
Stat. § 609.25, subd. 1(2). That is sufficient to support a finding of probable cause for the
kidnapping charge. See Harris, 589 N.W.2d at 790-91.
Burrington alleges that the attemp ted kidnapping charge is not supported by
probable cause because any confinement was merely incidental to the aggravated robbery
and thus not criminally significant. In order for confinement to be criminally significant,
it must be “more than merely incidental to the underlying crime .” State v. Earl , 702
N.W.2d 711, 722 (Minn. 2005) (quotation omitted). And if the confinement is “completely
incidental to the perpetration of a separate felony, it does not constitute kidnapping.” State
v. Smith, 669 N.W.2d 19, 32 (Minn. 2003), rev’d on other grounds by State v. Leake, 699
N.W.2d 312 (Minn. 2005). But if the confinement results from “purposeful behavior in its
own right,” it is not incidental. Earl, 702 N.W.2d at 723. We conclude that Burrington’s
attempts to confine the store owner were not “merely incidental” to the aggravated robbery.
Said differently, attempting to confine the store owner using the pillowcase and duct tape
was not a necessary step in order to complete the aggravated robbery. Because Burrington
took additional, purposeful steps to attempt to confine the sto re owner, the confinement
was not incidental to the commission of the robbery.

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Finally, caselaw Burrington relies on to support his argument is distinguishable.5
Each of Burrington’s cited cases involved the question of wheth er the confinement
supported a kidnapping conviction, which requires proof beyond a reasonable doubt, a
much higher standard than probable cause. See Harris, 589 N.W.2d at 790-91.
Because a finding of probable cause only requires “a probabili ty or substantial
chance of criminal activity, not an actual showing of such acti vity” and because
Burrington’s actions demonstrated an attempt to confine the sto r e o w n e r t h a t w a s n o t
incidental to the aggravated r obbery, we conclude that the atte mpted kidnapping charge
was supported by probable cause. Harris, 589 N.W.2d at 790-91 (quotation omitted).
Accordingly, Burrington is required by statute to register as a predatory offender, and it
was not an abuse of discretion for the postconviction court to deny his petition for relief.6
Affirmed.

5 I n Smith, the supreme court determined that blocking a doorway after an a t t a c k w a s
incidental to the underlying c rime and not criminally significa nt. 669 N.W.2d at 32-33.
But Burrington took additional steps beyond blocking a doorway in an attempt to confine
the store owner. Similarly, in State v. Welch, the supreme court concluded that holding a
victim down in order to perpetrate a sexual assault was not con finement sufficient to
support a kidnapping conviction, noting that it was difficult to imagine a sexual assault that
did not involve such an action. 675 N.W.2d 615, 620-21 (Minn. 2 0 0 4 ) . B u t a g a i n ,
aggravated robbery does not always inherently require attempting to confine the victim by
placing a pillowcase over the victim’s head and attempting to duct tape his mouth. Finally,
in State v. McEwan, the supreme court reversed a kidnapping conviction after concluding
that “the evidence that the confin e m e n t o f t h e b o y s w a s t o f a c ilitate the robbery was
minimal at best.” 265 N.W.2d 818, 821 (Minn. 1978). Nothing i n this case suggests that
there is any doubt that Burrington attempted to confine the store owner using the pillowcase
and duct tape.
6 Burrington raises policy argumen ts that the burdensome restric tions of the predatory-
offender registration statute were not intended to apply to som eone in his position who
committed an aggravated robbery and that his sentence for aggravated robbery adequately
addresses his criminal conduct. But “the task of extending existing law falls to the supreme

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court or the legislature, but it does not fall to this court.” Tereault v. Palmer, 413 N.W.2d
283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987).