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This opinion will be unpublished and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
A19-0799

State of Minnesota,
Respondent,

vs.

Raciel Zalva Zalvidar-Proenza,
Appellant.

Filed May 18, 2020
Reversed
Smith, Tracy M., Judge

Swift County District Court
File No. 76-CR-17-280

Keith Ellison, Attorney Genera l, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Danielle Olson, Swift County Attorney, Benson, Minnesota (for respondent)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Rodenberg, Judge;
and Peterson, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Raciel Zalva Zalvidar-Proenza 1 challenges his conviction for failure to
register as a predatory offender, arguing th at respondent State of Minnesota provided
insufficient evidence to show that he knowingly committed the offense. Because the state
limited the offense period to a time when th e circumstances proved support a rational
theory inconsistent with guilt, the evidence is insufficient to support the conviction. We
reverse.
FACTS
On June 22, 2017, the state charged Zalvid ar-Proenza with one c ount of failure to
register as a predatory offender under Minn. Stat. § 243.166, subd. 5(a) (2016). The Bureau
of Criminal Apprehension (BCA) required Zalvidar-Proenza to register as a sexual predator
when he was released from prison in 1999 for a 1997 second-d egree sexual-assault
conviction. As part of his registration requi rements, Zalvidar-Proenza was required to
update his registration with any changes of information. See Minn. Stat. § 243.166, subd. 3
(2016).
This case revolves around Zalvidar-Proenza’s update of his place of residence on
December 27, 2016. On that da te, Zalvidar-Proenza went to the Swift County Sheriff’s
Office to update his address. He spoke with A.B., a Swift County records employee, who

1 Appellant’s name is listed as “Zalvidar-Proenza” in the case heading, although his name
has also been spelled “Zaldivar-Proenza” in district court filings and in a previous appeal
to this court. State v. Zaldivar-Proenza , No. A19-0157, 2020 WL 290442 (Minn. App.
Jan. 21, 2020), review granted (Minn. Apr. 14, 2020).

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had worked with Zalvidar-Proenza on registra tion forms in the past . Zalvidar-Proenza
orally provided his new address information, and A.B. filled in the form. A.B. then gave
the completed form to Zalvid ar-Proenza for his review. He made no changes and signed
the form. The form change d Zalvidar-Proenza’s addr ess from “XY7 9th St SE 2” in
Kerkhoven to “XY3 9th St SE.” His new address was actually XY3 10th Street South.
On April 9, 2017, Deputy Jordan Michael Hennes of the Swift County Sheriff’s
office was performing a rou tine compliance check rega rding Zalvidar-Proenza’s
registration. Deputy Hennes had interacted with Zalvida r-Proenza in November 2016,
when he served Zalvidar-Proenza with an eviction notice from his 9th Street residence, and
Deputy Hennes had reminded Zalvidar-Proenza to update his residence information. As
part of Deputy Hennes’s compliance check, he reviewed Zalvidar-Proenza’s BCA records
and recognized that the new address listed on the change-of-information form was incorrect
because the “SE” moniker only applies to county addresse s and there was not a house
number of XY3 9th Street “SE. ” Hennes also knew that Za lvidar-Proenza was living at
XY3 10th Street South because of a previous call to that address. Deputy Hennes went to
the 10th Street address, spoke with Zalvidar-Proenza, and told him that the address on the
form was incorrect. Zalvidar-Proenza told Deputy Hennes that he must have put down the
wrong information. Deputy Hennes told him to update his form to fix the error.
On June 22, 2017, when Za lvidar-Proenza had not ye t corrected the erroneous
information, the state filed ch arges against him for violating registration requirements. It

2 We substitute X and Y for the specific address numbers.

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later amended the complaint. A lthough Zalvidar-Proenza was still in violation when the
charges were filed, the amended complaint liste d the offense date as on or about April 9,
2017—the date that Deputy Hennes noticed th e violation. On July 28, 2017, Zalvidar-
Proenza corrected his registration documents . On October 24, 2018, the complaint was
amended again to list the offense date as on or about December 27, 2016 to April 9, 2017.
After a two-day trial, the jury was asked in a special-verdict form whether Zalvidar-
Proenza was guilty of failure to register “on or about December 27, 2016 to April 9, 2017.”
The jury returned a verdict of guilty. The district court se ntenced him to 30 months of
imprisonment, to be served concurrently with an executed sentence for another conviction,
which this court has since affirmed on appeal. Zaldivar-Proenza, 2020 WL 290442. This
appeal follows.
D E C I S I O N
To convict someone for failing to register under the predatory reporting statute, the
state must show that the defendant needed to register as a predatory offender and that the
defendant knowingly violated a registration requirement. Minn. Stat. § 243.166, subd. 5(a);
State v. Mikulak, 903 N.W.2d 600, 603-04 (Minn. 2017). Zalvidar-Proenza argues that the
state provided insufficient evid ence that he knowingly fa iled to register. Defendants
knowingly fail to register when they are aware they are violating the reporting statute while
they are committing the act. Mikulak, 903 N.W.2d at 603-04.
Intent is generally shown th rough circumstantial evidence. State v. Essex , 838
N.W.2d 805, 809 (Minn. App. 2013), review denied (Minn. Jan. 21, 2014). But the state
argues that there is sufficient direct evidence to show Za lvidar-Proenza’s knowledge that

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he was violating the statute, citing the fa cts that: (1) Zalvidar -Proenza signed forms
recognizing his requirement to report, (2) De puty Hennes testified that he told Zalvidar-
Proenza to report after he was evicted, (3) A.B. testified that Zalvidar-Proenza orally told
her the wrong address, and (4) Zalvidar-Proenza signed the address change form. But none
of this evidence shows directly what was in Zalvidar-Proenza’s mind. We therefore apply
the circumstantial-evidence standard.
When a disputed element of an offense is proved in part by circumstantial evidence,
appellate courts apply a heig htened standard of review. State v. Al-Naseer , 788 N.W.2d
469, 473 (Minn. 2010). Under the circumstan tial-evidence standard, appellate courts
follow a two-step analysis. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). The first step
is to identify the circumstan ces that the state proved. See State v. Anderson, 784 N.W.2d
320, 329 (Minn. 2010). In doing so, appellate courts “defer . . . to the jury’s acceptance of
the proof of thes e circumstances.” Id. (quotation omitted). Appellate courts “construe
conflicting evidence in the light most favorable to the verdict and assume that the jury
believed the State’s witnesses and disbelieved the defense witnesses.” Moore, 846 N.W.2d
at 88 (quotation omitted). “The second step is to determine whether the circumstances
proved are consistent with guilt and inconsiste nt with any rational hypothesis except that
of guilt.” Id. (quotations omitted). If they are not, appellate courts must reverse the
conviction. See Al-Naseer, 788 N.W.2d at 481. When cons idering circumstances proved,
we only look at circumstances relating to the offense, and the offense is defined by the
dates listed on the complaint. Cf. Taylor v. State , 670 N.W.2d 584, 588 (Minn. 2003)

6
(stating that it was improper for the district court to consider acts committed on dates
different from listed on the complaint to support upward departure).
Here, the circumstances proved are that Zalvidar-Proenza had an obligation to report
his address change as a sexual predatory offender. In November 2016, Deputy Hennes
reminded Zalvidar-Proenza to u pdate his address after he served an eviction notice. On
December 27, 2016, Zalvidar-Proenza, who was previously living at what his form listed
as “XY7 9th St. SE,” told A.B. at the Swift County Sheriff’s Office that he needed to
change his address to “XY3 9th St. SE.” A. B. had worked with Za lvidar-Proenza more
than a dozen times and the two had effectively communicated in English, although it was
not Zalvidar-Proenza’s first language. A.B. entered the information into the BCA’s
software, printed out a page showing the wron gly stated address, and Zalvidar-Proenza
signed it. Four months later, Deputy Hennes conducted a random predatory-registration
check and realized the error on the form because Zalvidar-P roenza actually lived at XY3
10th Street South.
The next step is to determine whether these circumstances are consistent with guilt
and inconsistent with any ra tional hypothesis other than gu ilt. Zalvidar-Proenza focuses
only on the latter inquiry. He argues that there are three rational theories inconsistent with
guilt: the incorrect info rmation was a result of a (1) clerical error, (2) language
miscommunication, or (3) his own unknowing error.
Zalvidar-Proenza’s first two theories are inconsistent with the circumstances
proved. The third theory, however, is consistent with the circumstances proved. Zalvidar-
Proenza had registered previously with the BCA. Upon his change of address, he went to

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the sheriff’s office to update his information. The updated information contained the same
mistake of a “SE” address as his previous ad dress. The house number of the new address
was correct, but the street was off by one st reet. The similarities between the wrong new
address that Zalvidar-Proenza provided on December 27 and the former address rationally
lead to a conclusion this was an honest mist ake. Further, the state has not shown any sort
of motive or benefit associat ed with the wrong address that could prove it was an
intentional act in these circ umstances. The evidence showed that law enforcement was
aware of Zalvidar-Proenza’s correct address, even if the form was wrong. Law enforcement
informed Zalvidar-Proenza of the incorrect address on April 9, 2017. The circumstances
proved support the reasonable hypothesis that, as of April 9, the incorrect address was a
mistake and not a knowing violation. In fact, the state did not charge Zalvidar-Proenza in
April—it only charged him in June when he had not yet corrected his address information.
Based on the date range of the offense, fro m December 26, 2016, to April 9, 2017, and
consistent with the heightened scrutiny of the circumstantial-evidence test, the state did not
provide sufficient evidence to support Zalvidar-Proenza’s conviction.
Reversed.