1
STATE OF MINNESOTA

IN SUPREME COURT

A19-0436

Court of Appeals Anderson, J.
Dissenting, Moore, III, J., Gildea, C.J.
State of Minnesota,

Respondent,

vs. Filed: May 5, 2021
Office of Appellate Courts
Natasha Renae Berry,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul Minnesota; and

Steven F. O’Keefe, Goodhue County Attorney, Christopher J. Schrader, Assistant County
Attorney, Red Wing, Minnesota, for respondent.

Cathryn Middlebrook , Chief Appellate Public Defender , Jennifer Workman Jesness ,
Assistant State Public Defender, Saint Paul, Minnesota, for appellant.
________________________

S Y L L A B U S
Predatory registration under Minn. Stat. § 243.166, subd. 1b(a) (2020), is not
required because appellant’s conviction for aiding an offender to avoid arrest did not arise
out of the same set of circumstances as the charged offenses of kidnapping and false
imprisonment.
Reversed and remanded.

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O P I N I O N
ANDERSON, Justice.
This appeal requires us to determine whether appellant Natasha Renae Berry is
required to register as a predatory offender. Berry helped her husband flee from Red Wing
to Ohio after he forced laundry employees into a breakroom at gunpoint in an attempt to
regain his employment at the laundry . Berry was charged with kidnapping , false
imprisonment, and threats of violence .1 She was also charged with aiding an offender to
avoid arrest. Berry pleaded guilty to aiding an offender to avoid arrest in violation of Minn.
Stat. § 609.495, subd. 1(a) (20 20), and as a result of a plea agreement, the remaining
charges were dismissed. At the plea hearing, Berry was ordered to register as a predatory
offender based on her conviction for aiding an offender to avoid arrest. Berry appealed the
registration requirement, arguing that Minn. Stat. § 243.166, subd. 1b(a) (2020), does not
require registration. T he court of appeals affirmed. Because we conclude that Berry’s
conviction and charged offenses do no t arise from the same set of circumstances, we
reverse the decision of the court of appeals and remand to the district court to va cate the
registration requirement.

1 All three charges alleged aiding and abetting criminal liability under Minn.
Stat. § 609.05, subd. 1 (2020). As we reaffirmed in State v. Ezeka, 946 N.W.2d 393, 407
(Minn. 2020), aiding and abetting is not a separate substantive offense. We therefore refer
to these offenses as kidnapping, false imprisonment, and threats of violence. Contrary to
Ezeka, the dissent describes the kidnapping and false -imprisonment offenses as “ aiding
another in committing the crimes of kidnapping and false imprisonment ” and “aiding and
abetting kidnapping and false imprisonment.”

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FACTS
At around 7:02 a.m. on June 8, 2018, Berry entered Crothall Laundry Services in
Red Wing. She went into an office and left the building at 7:06 a.m. At 7:07 a.m., Berry’s
husband entered the building carrying a gun. He ran into two Crothall Laundry managers
and began yelling. He was angry because Crothall Laundry had refused to rehire him three
days earlier. When one of the managers mentioned calling the police, Berry’s husband
responded, “[Y]ou aren’t going anywhere and you aren’t calling anyone.” He then told the
two managers to go to the breakroom. When he and the managers entered the breakroom,
they encountered three other employees. Berry’s husband continued yelling about getting
his job back. The managers felt that they were hostages and were afraid. Berry’s husband
then allowed two of the employees to leave the breakroom, but said the managers could
not leave.
By approximately 7:08 a.m., one m inute after her husband had first entered the
building, Berry reentered Crothall Laundry carrying a backpack. She stopped in the
hallway in front of the breakroom and told her husband that it was time to leave. He left
the breakroom, walked to the end of the hallway, and put the gun into Berry’s backpack.
Berry and her husband left the building and drove away in an SUV.
The police thought Berry might be a “possible hostage.” 2 A subsequent search of
the Red Wing hotel room where Berry and her husband w ere staying revealed “a large

2 It is undisputed that the complaint alleges that the police thought Berry might be a
“possible hostage.” The dissent argues that mentioning this allegation is inappropriate
because (1) duress is an affirmative defense that negates intent , State v. Charlton , 338

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amount of clothing, food, a cell phone, and other personal items.” The police traced
Berry’s cell phone to an area of Interstate 90 near Eyota, heading east . Berry and her
husband were arrested in Ohio the next day.
Berry was subsequently charged with kidnapping in violation of Minn. Stat.
§ 609.25 (20 20), false imprisonment in violation of Minn. Stat. § 609.255 (20 20), and
threats of violence in violation of Minn. Stat. § 609.713 (2020). All three counts alleged
aiding and abetting liability under Minn. Stat. § 609.05 (2020). The State also charged
Berry with aiding an offender to avoid arrest in violation of Minn. Stat. § 609.495 (2020).
On the morning of trial, Berry pleaded guilty to aiding an offender to avoid arres t
in violation of Minn. Stat. § 609.495, subd. 1(a), and the remaining charges were dismissed.
As part of the factual basis of her plea, Berry admitted that she was in Red Wing on June
8, 2018, with her husband. She admitted that she knew that “Mr. Ber ry threatened some
people at Crothall Laundry with a firearm” and that she knew that by doing so he had
committed a felony offense . She also admitted that she drove her husband to Ohio, and
she had done so to help her husband avoid arrest.
When Berry en tered her guilty plea, her counsel argued to the district court that,
because her conviction for aiding an offender to avoid arrest arose out of circumstances

N.W.2d 26, 30 (Minn. 1983) (explaining that if a defendant adduces sufficient evidence to
make duress one of the issues in the case, the burden reverts to the State to establish a lack
of duress) and (2) during her plea colloquy, Berry answered “Yes” when asked if “[her]
purpose was for [her husband] to avoid arrest.” We respectfully disagree. It is difficult to
reconcile this argument with the dissent’s competing argument that our analysis “elevates
facts from Berry’s plea colloquy to a higher status than the facts from the complaint.”

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different from the circumstances underlying the dismissed charges, predatory registration
was not required. The district court denied the motion, stating:
My understanding of the facts was actually that Ms. Berry went in
prior . . . . She then exited, and then Mr. Berry walked in with a gun and the
whole melee took place, and then she went in and actually extricated him out
of there and, in my mind, helped resolve the situation by getting her husband
out of there and took him out. It sounds like the offense is based upon her
then decision to flee the jurisdiction.

My personal thoughts, unfortunately, about predatory registration in
this type of a case simply carry no water whatsoever . This would be a case
where predatory offender registration, in my mind, wouldn’t really apply to
Ms. Berry. She was—I don’t want to say [an] innocent bystander, but wasn’t
directly involved. Like I said, my take on it was that she actually helped
resolve the situation and avoid further violence. But I have no jurisdiction
over deciding who gets to register and who does not . . . .

So I am going to de ny the motion, because I think it is inextricably
involved with the underlying offense, regardless of how you look at it. But
for the offense at Crothall Laundry, they would not have been fleeing to
another state.

(Emphasis added.)

The district court later issued an amended sentencing order finding that Berry’s
conviction for aiding an offender to avoid arrest was “inextricably interwoven with the
underlying offenses requiring registration” and therefore Berry’s conviction “arose out of
the same set of circumstances as the Kidnapping and False Imprisonment offenses.”
Berry appealed the registration requirement. State v. Berry , No. A19-0436, 2020
WL 289060, at *1 (Minn. App. Jan. 21, 2020) . The court of appeals affirmed, reasoning
that, because Berry’s charged predatory offenses arose out of the same set of circumstances
as her conviction offense, she was required to register as a matter of law. Id. at *3. We
granted Berry’s petition for review.

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ANALYSIS
Berry challenges the application of the predatory registration statute to her
conviction. We review the district court’s findings of fact for clear error and
its application of the law to those facts de novo. State v. Degroot , 946 N.W.2d 354, 365
(Minn. 2020); State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014) (“We review the district
court’s findings of historical fact under the clearly erroneous standard, but we review the
district court’s application of the law to those facts de novo.”).
“[T]he primary purpose of [Minn. Stat. § 243.166] is to create an offender registry
to assist law enforcement with investigations.” Boutin v. LaFleur, 591 N.W.2d 711, 717
(Minn. 1999). Before 1993, only persons convicted of enumerated predatory offenses were
required to register. Minn. Stat. § 243.166, subd. 1 (1992). But in 1993, t he Legislature
amended Minnesota’s predatory registration statute to also require registration for persons
who are simply charged with predatory offenses, as long as they are convicted of “another
offense arising out of the sam e set of circumstances.” See Act of May 20, 1993, ch. 326,
art. 10, § 1, 1993 Minn. Laws 1974, 2090; State v. Lopez , 778 N.W.2d 700, 704 (Minn.
2010) (suggesting that the purpose of the 1993 amendment was to prevent defendants from
using plea agreem ents t o avoid registratio n).3 We have observed that , “[w]hile the
threshold factual showing of probable cause necessary to support a charge is low,” the 1993

3 Minnesota appears to be “the only state in the nation with an offender registration
law that requires registration as a predatory offender if an offender is ‘merely “ charged
with” a predatory offense and then convicted of any other offense—no matter how minor—
that arises from the same set of circumstances as the predatory offense charge.’ ” Werlich
v. Schnell, __ N.W.2d __, 2021 WL 1556823, at *8, n.8 (Minn. 2021).

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amendment “stopped short of requiring registration in every case where a predatory offense
is charged.” Lopez, 778 N.W.2d at 705. Under Minnesota law, a person is required to
register as a predatory offender when the person was charged with one or more enumerated
offenses and “convicted of . . . that offense or another offense arising out of the same set
of circumstances.” Minn. Stat. § 243.166, subd. 1b(a) (2020).
Two of the charged offenses here, kidnapping and false imprisonment, require
predatory registration; the offense of aiding an offender to avoid arrest does not require
predatory registration . Id., subd. 1b(a)(1)(ii), (2)(ii). Berry is required to register as a
predatory offender only if her conviction for aiding an offender to avoid arrest arose out of
the same set of circumstances as the charged offenses of kidnapping or false imprisonment.
Berry makes two arguments. First, she argues that the district court erred by
applying a “but for” test. 4 Second, Berry argues that the court of appeals, which applied
the “same set of circumstances” test, erred by affirming the district court’s determination
that the conviction for aiding an offender to avoid arrest arose out of the same set of
circumstances as the kidnapping and false imprisonment charges.
We have addressed the “same set of circumstances” provision of Minn. Stat.
§ 243.166, subd. 1b(a)(1), most recently in Lopez. The defendants in Lopez, two brothers,

4 We agree that Lopez did not create a “but for ” test. In analyzing the “persons
involved” factor of the Lopez test, the dissent applies a “but for” test by stating that “one
may argue that the victims are involved too because without victims there would be no
offense and no need for escape .” This analysis is inconsistent with the test announced in
Lopez, which requires “overlap with regard to time, location, persons involved, and basic
facts.” 778 N.W.2d at 706 (emphasis added).

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had sold methamphetamine to a confidential informant and, 10 days later, in an attempt to
collect the remaining balance on the drug deal, kidnapped the informant and the
informant’s friend. 778 N.W.2d at 702. The defendants were subsequently charged with
kidnapping—an enumerated pred atory offense requiring registration under section
243.166—and a first-degree controlled-substance crime.5 Id. at 703. The defendants were
eventually convicted of the drug charges, but the kidnapping charges against both were
dismissed. Id. The defendants were ordered to register as predatory offenders as required
by section 243.166; they appealed the registration requirement. Id.
In Lopez, we rejected arguments that predatory registration is required when the
convicted offense and the c harged offense arise out of “related circumstances” or where
the two share a “single related circumstance.” Id. at 706. We instead held that the “same
set of circumstances” phrase contained in section 243.166, subdivision 1b, means that a
person must register as a predatory offender when the “same general group of facts” gave
rise to both the convicted offense and the charged offense. Id. The circumstances need
not be identical in all respects, but there must be sufficient “overlap with regard to time,
location, persons involved, and basic facts.” Id. (emphasis added).
As a preliminary matter, we restate here that the test of time, location, persons
involved, and basic facts is the correct framework, and a district court’s consideration of
whether predatory registration is required must include at least these factors. But as we
suggested in Lopez, these factors should be read narrowly ; they cannot be applied so

5 Both charges alleged aiding and abetting liability under Minn. Stat. § 609.05.

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broadly as to include merely “related” circumstances. Id. Reading the factors of time,
location, persons involved, and ba sic facts narrowly to avoid “related circumstances,” we
conclude that Berry is not required to register as a predatory offender.
We first look to the “time” factor. The offense of aiding an offender to avoid arrest
is unique because it necessarily occurs after the aided offender has committed the
underlying crime. We recognized the unique nature of this offense in State v. Skipintheday,
when we said, “a coconspirator helps someone commit a crime, but an accomplice after -
the-fact helps a person who has committed a crime evade the law.” 717 N.W.2d 423, 426
(Minn. 2006). An accessory after the fact interferes “with the processes of justice and is
best dealt with in those terms. ”6 Id. at 427 (quoting 2 Wayne R. LaFave, Substantive
Criminal Law § 13.6(a), at 404 (2d ed. 2003)). Consistent with the unique nature of the
crime of aiding an offender to avoid arrest, the district court found that Berry help ed her

6 According to the dissent, the victims of kidnapping and false imprisonment were
“arguably involved in [Berry’s] escape” because the offense of aiding an offender to avoid
arrest “required [Berry’s] awareness of an underlying offense.” (Emphasis added.) We
respectfully disagree. First, the offense of aiding an offender to avoid arrest does not
require the defendant to have an awareness of the victims or any other specific detail of the
underlying offense. If Berry’s husband had exclaimed, “Go, go, go, I just robbed a bank,”
Berry would have an “awareness of the offense” even though she had no idea who was in
the bank. Next, the dissent’s argument fails to interpret the persons -involved factor
narrowly to avoid “related circumstances. ” See Lopez, 778 N.W.2d at 706. Instead, the
dissent’s argument stretches this factor to include a mere “awareness” of anyone involved
in the underlying offense. Finally, the argument is inconsistent with Skipintheday, in which
we explained that “ accomplices after -the-fact come along after the victims have been
harmed and do not further their victimization merely by helping the principal offenders
evade the law.” 717 N.W.2d at 427 (emphasis added).

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husband flee the jurisdiction after her husband committed the kidnapping and false
imprisonment. More specifically, the court said,
[Berry] went in and actually extricated [her husband] out of there and, in my
mind, helped resolve the situation by getting her husband out of there and
took him out. It sounds like the offense [of aiding an offender to avoid arrest]
is based upon her then decision to flee the jurisdiction.7

(Emphasis added.)
The factual basis of Berry’s guilty plea is consistent with the district court’s
determination that she decided to help her husband flee the jurisdiction after her husband
committed the kidnapping and false imprisonment .8 In her factual basis, Berry admitted

7 The dissent asserts that the district court’s use of the phrase “her then decision to
flee the jurisdiction” does not reflect a determination of the moment Berry decided to flee
the jurisdiction, and therefore a conclusion that Berry decided to help her husba nd escape
only after he committed his offenses is “speculative at best.” We respectfully disagree. In
the phrase “her then decision,” the word “then” is an adjective that means “existing or
acting at or belonging to the time mentioned.” Webster’s Third New International
Dictionary 2370 (1961). The “time mentioned” here is when Berry got “her husband out”
of the laundry. Acknowledging this temporal fact, the dissent argues that the decision made
by Berry at that moment might not have been “to flee the jurisdiction” but rather a decision
“to follow -through on an earlier decision [to flee the jurisdiction].” In our view, the
dissent’s decision -within-a-decision interpretation of the district court’s statement is
unreasonable.

8 The dissent contends th e district court’s statement that the offense of aiding an
offender to avoid arrest “is based upon her then decision to flee the jurisdiction” is simply
a personal thought, not a factual finding. We respectfully disagree. Although the district
court explained that its personal thoughts “ about predatory registration in this type of a
case simply carry no water whatsoever ,” this statement does not suggest that the district
court’s earlier recitation “of the facts” was simply a “personal thought.” (Emphasis added.)
The “personal thoughts” statement plainly references a question of public policy that is
reserved, in the first instance, for the Legislature. The dissent’s analysis not only fails to
defer to the district court’s finding of fact, but it also erases the line between an accomplice
who aids in the commission of the underlying offense and an accomplice who aids an
offender after the fact.

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the following facts : she was in Red Wing on June 8, 2018 ; she knew her husband had
threatened laundry work ers with a firearm ; she knew that his conduct in threatening the
laundry workers with a firearm was a felony ; and she drove her husband to Ohio with the
purpose of helping him avoid arrest. None of these admissions suggests that Berry decided
to help her husband flee the jurisdiction before he committed the kidnapping and false
imprisonment.9 As a result, the district court’s determination that Berry decided to help
her husband flee the jurisdiction after her husband committed the kidnapping and false
imprisonment is not clearly erroneous.10

9 The dissent argues, “none of Berry’s admissions indicate that she made this decision
only after her husb and committed the predatory offenses .” To the extent that Berry’s
admissions are neutral regarding the timing of her decision to flee the jurisdiction, those
admissions plainly do not call into question the district court’s finding that Berry decided
to h elp her husband flee the jurisdiction after he committed the kidnapping and false
imprisonment. Moreover, we have thoroughly reviewed the probable-cause section of the
complaint. Nowhere in the complaint does it allege that Berry decided to help her husband
flee before he committed the kidnapping and false imprisonment. Instead, the probable -
cause section alleges the following. Berry entered the laundry and told her husband that
“it was time to leave.” Berry and her husband drove away in an SUV. The officers thought
Berry might be a “possible hostage.” A subsequent search of Berry’s hotel room revealed
“a large amount of clothing, food, a cell phone, and other personal items.” In our view, the
substantial amount of abandoned property supports a reasonable and logical inference that
when Berry and her husband left their hotel room, they did not plan to flee to Ohio. Such
an inference is consistent with the d istrict court’s finding that Berry decided to help her
husband flee the jurisdiction after he committed the kidnapping and false imprisonmen t.
According to the dissent, the fact that Berry took her cellphone and the means to buy goods
and services suggests that she planned to flee to Ohio when she left the hotel room . We
respectfully disagree. T he actions highlighted by the dissent are wholly consistent with
someone who plans to return to the hotel room and therefore do not support a reasonable
and logical inference that Berry intended to flee to Ohio when she left the hotel room.

10 In its amended order, the district court found that Berry’s conviction of aiding an
offender to avoid arrest was “inextricably interwoven with the underlying offenses

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The remaining Lopez factors support a conclusion that there i s insufficient overlap
between the offense of aiding an offender to avoid arrest and the kidnapping and false
imprisonment offenses. The kidnapping and false imprisonment offenses occurred entirely
within the laundry building. By contrast, the offense of aiding an offender to avoid arrest
occurred almost entirely outside the laundry building in a car traveling over hundreds of
miles of interstate highway . Any o verlap of location that occurred as Berry and her
husband left the laundry was such a small sliver of the two events that it fails to satisfy the
location factor of the Lopez test. There is also insufficient overlap of the persons involved.
The laundry personnel were the victims of the kidnapping and false imprisonment offenses
whereas the public at large was the victim of the offense of aiding an offender to avoid
arrest.11 See Skipintheday, 717 N.W.2d at 427 (explaining that accomplices after the fact
do not further victimize the underlying victims by helping the principal offender evade the

requiring registration.” In light of the unique nature of the offense of conviction, the facts
to which Berry admitted during her factual basis, and the district court’s earlier finding that
Berry helped her husband flee the jurisdiction after he committed the underlying offenses,
the “inextricably interwoven” finding is clearly erroneous. Accord ing to the dissent, we
are bound by the district court’s clearly erroneous finding because the parties did not ask
us to review it. We disagree. Appellate courts have a “responsibility to review the record
even though the assignments of error are inadequ ate.” State v. Post, 512 N.W.2d 99, 103
(Minn. 1994) (citation omitted). The dissent contends that its analysis “gives deference”
to the “inextricably interwoven” finding. Although we defer to a district court’s findings
of fact, such deference does not extend to a clearly erroneous finding. State v. McDonough,
631 N.W.2d 373, 390 (Minn. 2001).

11 The dissent argues that the persons-involved factor can be satisfied solely by the
continued presence of the defendants (Berry and her husband). We respectf ully disagree.
If the continued presence of the defendant or defendants were sufficient, by itself, to satisfy
the persons-involved factor of the Lopez test, the factor would be satisfied in almost every
case, thereby undermining the purpose of the Lopez test—ensuring that the registration
requirement is not extended to “related circumstances.” 778 N.W.2d at 706.

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law). Finally, the basic facts underlying the kidnapping and false imprisonment offenses
do not sufficiently overlap with the basic facts of the offense of aiding an offender to avoid
arrest. The State charged Berry with the kidnapping and false imprisonment offenses under
an aiding and abetting theory of criminal liability , which required the State to prove that
Berry knew that her husband was going to commit a crime and that she intended her
presence to further the commission of that crime. See State v. Mahkuk, 736 N.W.2d 675,
682 (Minn. 2007). The basic facts alleged in support of the kidnapping and false
imprisonment offenses were Berry’s scouting of the laundry, her reentry one minute after
her husband entered the laundry with a gun, and her directive that it was time to leave. By
contrast, the basic fact s alleged in support of the offense of aiding an offender to avoid
arrest were Berry entering the car and driving her husband to Ohio.
In sum, w e hold that Berry is not subject to the predatory of fender registration
requirement because her culpable conduct occurred after the co mpletion of her husband’s
crimes, in a car traveling over hundreds of miles of interstate highway, whose sole
occupants were Berry and her husband, with the purpose of evading the law.
CONCLUSION
For the forgoing reasons, we reverse the decision of the court of appeals and remand
to the district court to vacate the predatory-offender registration requirement.
Reversed and remanded.

D-1

D I S S E N T
MOORE, III, Justice (dissenting).
The court has determined Berry is not required to register as a predatory offender
after finding that her conviction for aiding an offender to avoid arrest did not arise out of
“the same set of circumstances ” as the predatory offenses she was charged with —aiding
another in committing the crimes of kidnapping and false imprisonment. In reaching this
decision, however, the court misconstructs the factual record, hinges its conclusion on one
factor of the Lopez test, applies the remainder of that test in an incomplete fashion, and
adopts an apparent bright -line rule at odds with the case -by-case balancing approach we
adopted in Lopez. Because there was sufficient overlap in the people, time, location, and
basic facts of Berry’s offenses to conclude they arose from the same set of circumstances,
I agree with the district court and the court of appeals that the law mandates her registration.
I therefore respectfully dissent.
I.
Minnesota Statutes § 243.166 (202 0), requires an individual to register as a
predatory offender if they are charged with a statutorily-enumerated predatory offense and
are subsequently convicted of that offense “or another offense arising out of the same set
of circumstances.” In this case, Berry was charged with two predatory offenses for which
registration would be required: aiding another in committing the crimes of kidnapping and
false imprisonment. Id., subd. 1b. The law, therefore, requires Berry to register if she was

D-2

found guilty of either predatory offense “or another offense arising out of the same set of
circumstances.” Id.1
After entering into a plea agreement, which resulted in the dismissal of the two
charged predatory crimes, Berry was convicted of aiding an offender “avoid or escape from
arrest, trial, conviction, or punishment”; a non -registration offense. See Minn. Stat.
§ 609.495 (2020). Thus, the question before us is whether Berry’s conviction for aiding
an offender to escape arrest arises out of “the same set of circumstances” as the charged,
but dismissed, predatory offenses of aiding and abetting kidnapping and false
imprisonment.
In State v. Lopez, we addressed the predatory registration requirement added by the
Legislature in 1993 for dismissed charges cont ained within the same complaint as a non -
predatory offense that results in a conviction. 778 N.W.2d 700, 705 (Minn. 2010). Lopez
and his brother were each charged with aiding and abetting a first -degree controlled
substance crime, a non -registration offense, and aiding and abetting kidnapping, a
registration offense. Id. at 701–02. The charges arose out of a drug sale and a related
kidnapping that occurred two weeks later after the prospective buyer refused to pay for the
drugs. Id. at 702–03. The brothers were convicted of the drug charges after stipulated facts
trials, but the kidnapping charges were dismissed. Id. We held that the kidnapping charge

1 The Legislature added this language in an effort to limit the ability of offenders to
plea-bargain out of registration requirements. State v. Lopez, 778 N.W.2d 700, 704 –05
(Minn. 2010) (“[T]o ensure that true predatory offenders cannot plead out of the
registration requirements, the legislature amended the statute to include defendants merely
charged with predatory offenses.”).

D-3

arose out of different factual circumstances from the drug sale and registration was not
required. Id.
In coming t o this conclusion, we determined registration is required “where the
same general group of facts gives rise to both the conviction offense and the charged
predatory offense.” Id. “In other words, the circumstances underlying both [offenses] must
overlap with regard to time, location, persons involved, and basic facts.” Id. To evaluate
the relationship between the two offenses, we decided the factual record for the charged
kidnapping offense was comprised of stipulated facts underlying the drug convictions, “the
charging documents,” and the parties’ briefs. Id. On this record, we concluded the
kidnapping charges did not arise from the same set of circumstances as the drug sale
because the alleged kidnapping “occurred 10 days later, in a different place, involving a
slightly different group of people.” Id. The only common circumstance between the two
offenses (payment of a debt from a drug sale) was too “tenuous of a link” to justify a
predatory offender registration requirement. Id. at 706.
The court reaffirms our Lopez test, but applies it to the charges in this case in an
incomplete fashion, placing significant emphasis on a verbal comment made by the district
court judge at Berry’s sentencing hearing about when she formed her intent to aid her
husband’s escape. After considering the entire record of the case and applying all aspects
of the Lopez test, I come to the opposite conclusion.
II.
To evaluate whether Berry’s offenses arise from the same set of circumstances, it is
important for us to first establish the factual record. Because there was no trial in this case,

D-4

the record we should consider —based on Lopez—includes facts surrounding the
conviction offense from the charging documents and the parties’ briefs. Id. at 705. The
court’s focus d eviates from assessing the entirety of that undisputed record to parsing
statements made by the district court judge about the case on the record and in writing. In
doing so, the court focuses on one preliminary verbal statement made by the district court
at Berry’s sentencing hearing, sua sponte rejects a factual finding in the sentencing order,
elevates facts from Berry’s plea colloquy to a higher status than the facts from the
complaint, and misapplies our clearly erroneous standard of review.
At Berry’s plea and sentencing hearing, she moved the district court to find that the
kidnapping offense arose out of different circumstances than the aiding and abetting
offense so she could avoid registering as a predatory offender. Prior to denying the motion,
the district court judge provided an explanation of his reasoning, including a summary of
his understanding of the facts of Berry’s conviction offense, and then his “personal
thoughts . . . about predatory registration in this type of a case” which, in the judge’s own
words, “simply carry no water whatsoever .” Yet, without explanation, the court focuses
its analysis on one statement from the district court judge’s impressions to the exclusion of
the full factual record and troublingly suggests we are re quired to give specific deference
to this statement. 2 None of these prefatory comments appear in the judge’s written order

2 The statement was the district court judge’s comment that “ [i]t sounds like the
[conviction] offense is based upon her then decision to flee the jurisdiction.” Emphasizing
the district court’s use of the word “then,” the court cites this statement as a factual finding
which precludes any possibility that Berry decided to help her husband escape before he
kidnapped his former co-workers. As the court correctly points out, “then” is an adjective

D-5

appealed from and should be irrelevant to this court’s reasoning. 3 See Larson v. Hill’s
Heating & Refrigeration of Bemidji, Inc., 400 N.W.2d 777, 782 (Minn. App. 1987) (finding
a trial court’s oral impressions stated on the record which differed from later written
conclusions to be “preliminary, non -binding observations”), rev. denied (Minn. Apr. 17,
1987).
Further confounding the court’s analysis is its application of the “clearly erroneous”
standard of review. Despite not being mentioned in either Berry’s or the State’s brief, the
court sua sponte rejects the district court judge’s ultimate factual conclusion that Berry’s
conviction offense was “inextricably interwoven” with the underlying predatory offenses
as “clearly erroneous.” By doing so, the court is reviewing the factual findings of the
district court for “clear error” despite not being asked to do so.4 This is beyond our scope
of review. See Greenlaw v. United States , 554 U.S. 237, 243 –44 (2008) (“[W]e rely on

that means “existing or acting at or belonging to the time mentioned.” This means that
Berry’s decision to flee the jurisdiction existed at the time mentioned; the moment of
escape. This does not preclude the possibility that Berry decided to help her husband
escape beforehand. It could simply mean that she decided at that time to follow through
with an earlier decision. The judge’s personal comment about this issue was, at best, an
ambiguous and nonbinding musing that should not form the basis of this factual record.

3 The Court of Appeals noted that “the district court’s statements regarding its
discretion or the appropriate legal standard do not change our analysis.” State v. Berry ,
No. A19-0436, 2020 WL 289060, at *2 n.3 (Minn. App. 2020). The same should be the
case for the district court’s preliminary, nonbinding observations regarding the facts.

4 The court asserts my analysis involves an “independent review of the record, ” but
the court’s a nalysis notably involves overturning a written factual finding by the district
court judge without being asked to do so in this appeal . My analysis actually gives
deference to the district court judge’s ultimate finding of fact that the offense of aiding an
offender was “inextricably interwoven” with the underlying registration offenses.

D-6

parties to frame the issues for decision and assign to courts the role of neutral arbiter of
matters the parties present . . . [and we] do not, or should not, sally forth each day looking
for wrongs to right.” (citation omitted)); see also Johnson v. Johnson, 84 N.W.2d 249, 254
(Minn. 1957) (“It is not within the province of this court to determine issues of fact . . . .”).
At no point did either party ask us to determine whether that one oral statement made by
the district court judge was a finding of fact essential to the case or whether any of the
district court’s factual findings were clearly erroneous. The interests of justice are not
served when appellate courts decide cases based on issues that were neither raised nor
argued because this violates the “important principle” of party presentation. See Heilman
v. Courtney, 926 N.W.2d 387, 399 (Minn. 2019) (Hudson, J., concurring) (explaining that
“we rely on the parties to frame the issues for decision and assign to courts the role of
neutral arbiter of matters the parties present”).
To support its review of the factual record, the court cites to State v. Degroot and
State v. Jones, both of which involved mixed questions of law and fact. 946 N.W.2d 354,
365 (Minn. 2020); 848 N.W.2d 528, 533 (Minn. 2014). 5 This case, however, involves no
dispute over what the facts of the case are. As Berry herself admits, “[t]he facts that gave
rise to [her] conviction are undisputed” and her only point of dispute “is whether the district

5 The court’s later citation to State v. Post is also in apposite. 512 N.W.2d 99, 103
(Minn. 1994). In that case, we determined sua sponte that a prosecutor’s closing statement
was inappropriate because it was prejudicial and could result in a new trial. Id. Nowhere
in Post did we look through the underlying factual findings made by the district court and
overturn one as clearly erroneous. Id. Nor is there an inadequate assignment of error in
this case because there was no assignment of error related to the facts of this case. Any
analogy to Post falls short and the court fails to cite a case where we have sua sponte
reviewed underlying factual findings for clear error in circumstances similar to this case.

D-7

court properly imposed the predatory -offender-registration requirement.” Following our
Lopez decision, we should be applying de novo review to determine whether registration
is required and not turning purely legal questions into mixed questions. 778 N.W.2d at 705
(applying de novo review to the predatory registration requirement despite minor
“inconsistencies . . . in the various accounts of the” underlying offense).
Finally, the court claims that the facts to which Berry admitted during her plea
hearing support its Lopez analysis after laying out the elements of the crime of aiding an
offender escape. It is unclear why the court specifically highlights Berry’s self -serving
answers to leading questions posed to her during the plea colloquy when, under Lopez, we
are to utilize the facts from the charging documents and briefs as well as the facts from the
proceedings related to the conviction offense.
All the factors of the Lopez test should be evaluated with consideration of the entire
factual record, which establishes the following. According to the complaint, this trip to
Crothall Laundry Services was a return trip for Berry’s husband, a former employee. He
had gone there three days prior to harass his former co-workers. The complaint is silent as
to whether Berry knew about this previous trip or not. On the morning of June 8th, Berry
drove with her husband to the laundry while an AR -15 rifle rested somewhere in their
vehicle.6 Berry then entered the laundry before her husband and was observed on

6 The court claims the complaint indisputably alleges that the police thought Berry
might be a “possible hostage .” This is, however, an incomplete representation of the
complaint’s actual language. The actual language from the complaint states that the police
were “unsure . . . if [Berry] was a willing pa rticipant, accomplice, or possible hostage.”
This lack of awareness of Berry’s role in the case led to the police conducting a follow-up

D-8

surveillance camera footage walking through an office area within the building. She left
the building and shortly afterwards her husband entered wielding the AR -15 from the car.
He kidnapped and imprisoned the management and staff while Berry remained outside.
She then reentered the building, helped him conceal the weapon in a backpack, and drove
off with him.
There is plenty of “reasonable evidence” within this record to support the di strict
court’s conclusion that the offenses were “inextricably interwoven.” Rasmussen v. Two
Harbors Fish Co. , 832 N.W.2d 790, 797 (Minn. 2013). The court’s clearly erroneous
rejection of that finding equates to “[a] definite and firm conviction that” th e district’s
court’s finding was “a mistake.” Id. I respectfully disagree with this rejection. The totality
of the circumstances casts serious doubt on the court’s conclusion that Berry’s offense did
not arise from the “same set of circumstances” as her husband’s actions in kidnapping,
imprisoning, and threatening his former supervisors.

investigation, including tracing Berry’s cell phone. Berry’s plea of guilty to the offense of
aiding an offender esca pe, which required her to admit having “intent” that her husband
would “avoid or escape from arrest, trial, conviction, or punishment,” belies any notion
that she was a hostage in this case. Minn. Stat. § 609.495. Under well -settled principles
of criminal law, an actor does not have the required intent if they are acting under duress.
State v. Charlton , 338 N.W.2d 26, 30 (Minn. 1983) (“[T]he element of intent requires a
conscious desire and purpose to bring about a criminal result.”). By pleading guilty, Berry
admitted that she intended to help her husband escape and, therefore, by definition she
cannot be a “hostage” who was acting under duress when she helped her husband escape.
Hostage, Merriam -Webster, https://www.merriam-webster.com/dictionary/hostage (last
accessed Apr. 30, 2021) (defining “hostage” to mean “one that is involuntarily controlled
by an outside influence (emphasis added)).

D-9

III.
I turn next to the application of the Lopez test to this factual record. I begin by
analyzing the Lopez factor emphasized by the court —time. The court conclud es that the
timing of Berry’s kidnapping offense and her offense of aiding an offender escape did not
overlap by looking at the elements of the underlying offenses and assuming that Berry’s
decision to help her husband escape was made after she aided his k idnapping and false
imprisonment of his coworkers. This is error in two ways. First, the court’s reliance on
the underlying elements of these offenses creates a bright-line rule that is inconsistent with
our Lopez decision. Second, the court’s conclusion about the timing of Berry’s decision to
aid her husband is, even if correct, 7 not determinative of when the circumstances of her
charged predatory offenses ended and when her aid to him began.
We have previously held that someone who aids an offender un der Minnesota
Statutes § 609.495, subd. 3 “helps a person who has committed a crime evade the law.”

7 The court states that “[t]he factual basis of Berry’s guilty plea is consistent with the
district court’s determination that she decided to help her husband flee the jurisdiction after
her husband committed the kidnapping and false imprisonment .” Putting aside whether it
was appropriate to elevate the district court’s on -the-record impressions to the level of a
factual finding, it is not possible to determine what Berry’s intentions were based on the
truncated factual basis she provided f or her guilty plea . The court states that none of
Berry’s admissions from her testimony suggest that she “decided to help her husband flee
the jurisdiction before he committed the kidnapping and false imprisonment.” But it could
also be argued that none of Berry’s admissions indicate that she made this decision only
after her husband committed the predatory offenses, because she provided no details
whatsoever regarding the incident or what her intent was that day. By answering “yes” to
ten leading and general questions, Berry merely admitted that on the date in question s he
was with her husband in Red Wing, he committed a felony level offense, and that she aided
him to avoid arrest for that offense by driving him to Ohio. Nothing about these admissions
supports the conclusion the court reaches regarding the timing of the decision to flee.

D-10

State v. Skipintheday, 717 N.W.2d 423, 426 (Minn. 2006) (emphasis omitted). The court
indicates that because the time factor in the aiding an offender sta tute necessarily occurs
after the underlying offenses have been committed that the two cannot be “sufficiently
linked” for the purpose of registration. See Lopez, 778 N.W.2d at 706. Neither our Lopez
decision nor the registration statute, however, requir es that the elements of the charged
offense align perfectly with the elements of the predatory offense. Rather, the timing of
the charged crime and the convicted offense “need not be based on identical facts,” but
simply must be sufficiently intertwined. Id.
The difference in time between an underlying offense and aiding an offender to
escape from it is a fact -specific issue that does not provide a solid basis for a rule of law,
and disregards the fact that aiding another by escapi ng from the scene of a crime extends
the circumstances of the underlying crime beyond its actual commission. As the court of
appeals aptly noted, “[a]iding another in the commission of a crime includes helping
another escape after committing a crime.” Berry, 2020 WL 289060, at *3. While the
nature of the aiding -an-offender crime necessitates that it occur “after” the underlying
crime, the inquiry for predatory registration is whether that aid is “sufficiently linked in
time” to the kidnapping and false imprisonment. Lopez, 778 N.W.2d at 706. In Lopez, the
time difference between the two offenses was 10 days and easily ascertained from the
record. Id. In this case, the difference between the completion of the charged offenses and
the beginning of the conviction offense was arguably seconds, which is assuredly enough
of a temporal overlap for the crimes to be “sufficiently linked.” Id.

D-11

After creating this bright-line rule, the court then concludes Berry did not decide to
help her husband escape before leaving for the laundry without addressing that (1) the
couple arrived together, (2) she entered the laundry first, (3) he was armed, and (4) she
remained at the scene of her husband’s crimes and took possession of his firearm before
they left together. 8 Her precise intent is, admittedly, unclear from the record before us.
But I am unwilling to reach the same degree of certainty regarding the timing of Berry’s
decision to aid her husband’s efforts at avoiding or escaping arrest without further
explanation of these facts. Indeed, as the district court and court of appeals did, I reach the
opposite conclusion.
Considering the location factor of the Lopez test, Berry’s offense and the charged
offenses clearly overlap. Berry was charged with kidnapping and f alse imprisonment.
These crimes occurred at the Crothall Laundry Services. The aid to escape occurred at the
same venue moments after the kidnapping ended. It was at the laundry where Berry took
possession of the weapon brandished by her husband, told h er husband that it was time to
go, and began leading police on a multi -state pursuit that ended in Ohio. Even if one

8 The court puts undue weight on Berry’s abandonment of certain personal items in
her hotel room as consistent with the district court judge’s impression about the timing of
her decision to flee the jurisdiction. The court’s speculation about this is not supported by
the record. Berry and her husband were able to drive over 1,000 miles in an SUV before
being apprehended in Ohio. Assuredly, along the way, the couple had to purchase gas and
thus had taken certain financial assets with them. The court also notes that the police were
able to trace Berry’s cell phone, another personal belonging the couple brought with them.
These actions are wholly consistent with someone intending to have sufficient resources to
help their husband escape over state lines. We simply do not know why the couple brought
certain items with them and left others and we should not speculate about the timing of
Berry’s decision to aid her husband’s escape in light of what she left behind in Red Wing.

D-12

adheres to the court’s conclusion that the escape did not begin until the offense ended,
Berry had helped her husband escape the second sh e helped him hide the AR -15 and told
him to leave; acts that both took place at the laundromat.
The “persons involved” factor is also sufficiently established. Berry was charged
with aiding her husband’s offenses of kidnapping and false imprisonment. These offenses
involved her, her husband, and their victims. Berry’s charge of aiding an offender escape
involved her and her husband. Indeed, one may argue that the victims are involved too,
because without victims there would be no offense and no need for escape.9 Even if we
assume the victims are not involved in the escape offense, two out of the three parties to
the charged crime and the convicted offense overlap. This is sufficient commonality to
meet this prong of the Lopez test.
Finally, the esse ntial facts of this case and the charged predatory crimes are
significantly tied to the aiding-an-offender offense and meet the fourth Lopez factor. Berry

9 In Skipintheday, we noted that the public at large are victims of the crime of helping
an offender escape and that the victims of the underlying offense are not further victimized
because the offender escaped. 717 N.W.2d at 427. Here, however, the inqui ry is not
whether the kidnapped and imprisoned staff of Crothall Laundry Services were victims of
Berry’s aiding-an-offender crime. Rather, the question is whether these victims qualify as
“persons involved” with Berry’s charged predatory offenses. Lopez, 778 N.W.2d at 706
(emphasis added). Because Berry’s offense of conviction required her awareness of an
underlying offense that involved these victims, they were arguably involved in her aid to
help her husband escape. Minn. Stat. § 609.495, subd. 1 (“W hoever harbors, conceals,
aids, or assists by word or acts another whom the actor knows or has reason to know has
committed a crime” is guilty of aiding an offender (emphasis added)). Indeed, there would
be no need to escape if no one had been kidnapped o r falsely imprisoned. The court’s
assertion that I am stretching “the ‘persons involved’ factor to include a mere ‘awareness’
of anyone involved in the underlying offense” is an argument that is absent from my
analysis. My dissent rather abides by the language of the aiding an offender statute which
requires awareness that an offense has been committed. Id.

D-13

could not have knowingly helped her husband escape if she had been unaware that he had
just committe d the underlying offenses he was fleeing from. The charges in this
case—Berry’s participation in her husband’s confining his former co-workers against their
will and aiding him to avoid or escape arrest—arose out of common underlying facts. She
admitted knowing that her husband had committed a felony level offense and aided his
efforts to avoid arrest for it by driving him to Ohio. The offenses were, as the district court
found, “inextricably interwoven” with each other. The interrelationship of these events
demonstrates that Berry’s charged and convicted conduct was sufficiently united in time,
place, persons involved, and basic facts under Lopez.
IV.
I acknowledge it may be tempting to agree with the result reached by the court in
this case, particularly given the fact that the State agreed to a plea bargain which allowed
Berry to admit guilt without having to articulate anything about her intent on the day of the
incident. It is possible as the district court judge speculated that Berry’s actions may have
helped resolve the situation without additional violence, suggesting that the attendant
collateral consequences arising from registration requirements might be an unjust result. 10
But notwithstanding those comments, the district court judge accepted Berry’s guilty plea,
convicted her of aiding her husband escape from his kidnapping offense, and decided that

10 A district court always has the option to “exercise its own discretion in convicting”
a defendant if it believes that conviction of a non-predatory offense that results in
registration—and its resultant collateral consequences —is unjust. See Johnson v. State ,
641 N.W.2d 912, 918 (Minn. 2002) (explaining that courts may reject plea agreements that
result in injustice).

D-14

the facts in this case required her to register under the language of the statute. Similarly,
“it is our job to interpret [statutes] as writte n and it is the Legislature’s job to draft
legislation” despite personal opinions about what the statute should say. KSTP-TV v.
Metro. Council, 884 N.W.2d 342, 349 n.4 (Minn. 2016). And we should not review facts
for clear error when neither party asks us to do so.
Further, the court’s apparent bright -line determination that registration is never
required when an offender is convicted of aiding an offender escape or avoid arrest for a
predatory offense is inconsistent with the statute’s plain language as interpreted in Lopez.
This inconsistency has troubling implications for future similar cases. Because the district
court was correct in concluding that the aiding an offender offen se of which Berry was
convicted arose out of the same set of circumstances as the alleged predatory offenses
committed on the same day, I would respectfully affirm the court of appeals’ decision that
the law requires Berry to register as a predatory offender.

GILDEA, Chief Justice (dissenting).
I join in the dissent of Justice Moore.