State v LeMasters

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5-25-2010 Minnesota:

State v LeMasters
No. A09-982.

Appellant challenges his convictions and subsequent concurrent sentences for five counts of failure to register as a predatory offender, alleging that he is being punished multiple times for the same offense, which would violate constitutional and statutory protections against double jeopardy. Because appellant's failure to register was a continuous offense, and each of the five verification forms sent to him by the state over the course of 15 months was a distinct event triggering a separate duty to register, his failure to respond to each verification form was a separate offense for the purposes of double jeopardy. We affirm.

FACTS
Appellant James Clifford LeMasters was indeterminately committed in May 1999 as a sexually dangerous person and sexual psychopathic personality pursuant to Minn. Stat. § 253B.185 (1998). While at the Minnesota Sex Offender Program (MSOP) facility in St. Peter (Civil Commitment), appellant did not respond to five verification forms that he received from the bureau of criminal apprehension (BCA) on April 18, 2005; July 18, 2005; January 16, 2006; April 17, 2006; and July 17, 2006.

The BCA is required to provide committed sex offenders with at least four verification forms per year. Minn. Stat. § 243.166, subd. 4(e) (2008).1 The verification forms require a person registered as a predatory offender to provide, among other things, his current and last address. Id., subd. 4(e)(2). Verification forms must be returned within ten days of receipt. Id. Failure to register as a predatory offender is a felony. Id., subd. 5(a) (2008).

Appellant deliberately did not complete and return the verification forms. He tore the form sent to him in April 2005 into small pieces and placed it in an envelope, on the back of which he wrote, "I refuse to fill these out, tell the police to come get me for refusing to register, by law," and "I am turning you people in for sexual abuse." In response to the July 2005 verification form, appellant did not complete the form, but wrote "I WILL NOT REGISTER — ARREST ME!!" on the outside of the return envelope. He did not complete or return the remaining forms. Appellant ultimately sought to introduce evidence at his trial that sexual abuse was widespread and that he was personally threatened, abused, and mistreated at the MSOP facility, but the district court ruled that this evidence was inadmissible because appellant lacked a viable necessity defense as a matter of law.2

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Appellant's violations were separated by substantial periods of time, one of the key considerations under section 609.035. Appellant contends that he had a single criminal objective, which was to be prosecuted so that he could make allegations of sexual abuse at the MSOP during his trial.

The supreme court has explained that, for example, a defendant may not be sentenced for both murder and arson when the arson is the means by which he commits the murder, "because the time and place of the offenses coincide and because the defendant is motivated by an effort to obtain a single criminal objective." Bookwalter, 541 N.W.2d at 294. That example deals with a single act that results in violations of multiple laws.

Appellant apparently wished to be arrested and prosecuted, but this case deals with distinct acts that were several months apart, each of which was in response to a specific stimulus — a separate verification form that he was required to complete. Consequently, appellant's offenses do not constitute a single behavioral incident. Although appellant may have had the ultimate objective of being prosecuted, this alone does not transform multiple behavioral incidents into a single behavioral incident.

Affirmed.

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