Opinion
No. C7-98-1374.
Filed April 6, 1999.
Appeal from the District Court, Anoka County, File No. KX975940.
Mike Hatch, Attorney General, and
Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, (for respondent)
Steven P. Russett, Assistant State Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant argues that (1) the district court abused its discretion by requiring him to complete a sex-offender treatment program as a condition of his probation; (2) the district court erred by requiring him to register as a sex offender and provide a DNA sample under Minn. Stat. § 243.166, subd. 1(a) (1996), and Minn. Stat. § 609.3461, subd. 1(1) (1996); and (3) these statutes, as applied to him, are unconstitutional. We affirm.
FACTS
Appellant Ronald McBride assaulted his wife throughout an argument that continued nearly six hours. He repeatedly slapped, choked, kicked, and bit her. Appellant kicked her in the back, gave her a bloody nose, gouged her eyes, and twisted her wrists and arms. With a knife, he threatened to cut her throat, cut her head off, and "cut the unborn child out of her." He told her that he thought she liked it when other men touched her and then pulled her sweatpants off and penetrated her vagina with his finger. In addition to numerous bruises observed by the police, hospital records indicated that the victim had a fractured wrist and a vaginal exam showed swelling, and abrasions along the vaginal wall.
Appellant was charged with third-degree criminal sexual conduct, second-degree assault, third-degree assault, and terroristic threats. Appellant pleaded guilty to criminal sexual conduct in the third degree; but after reviewing the pre-sentence investigation report (PSI), the court rejected appellant's guilty plea.
In April 1998, appellant appeared before a different judge and pleaded guilty to third-degree assault. The PSI included a psychological evaluation recommending that appellant should participate in intensive sex-offender and domestic-abuse treatment programs while on probation. As part of the sentence, the district court required that appellant complete sex-offender treatment, register as a sex offender, and provide a DNA sample. Appellant objected to undergoing sex-offender treatment; but he did not object to registering as a sex offender or providing a DNA sample.
DECISION I.
Appellant argues that the district court abused its discretion by requiring him to complete a sex-offender treatment program as a condition of his probation when the plea was to third-degree assault. We disagree.
The district court "has great discretion in the imposition of a sentence and the reviewing court cannot substitute its judgment for that of the district court." State v. Murphy , 545 N.W.2d 909, 916 (Minn. 1996) (citing Steeves v. State , 287 Minn. 476, 480, 178 N.W.2d 723, 725 (1970)).
Minn. Stat. § 609.3452, subd. 1 (1996), provides, in relevant part:
When a person is convicted of a violation of section * * * 609.344 [Criminal sexual conduct in the third degree] * * * or another offense arising out of a charge based on [that section], the court shall order an independent professional assessment of the offender's need for sex offender treatment.
* * * *
(Emphasis added).
Appellant was originally charged with criminal sexual conduct in the third degree under Minn. Stat. § 609.344 (1996), but later pleaded guilty to third-degree assault. Appellant's conviction of third-degree assault constitutes "another offense arising out of a charge based on" the sex offense, which under section 609.3452 requires the court to order a sex-offender treatment assessment.
The court-appointed psychologist recommended that appellant undergo sex-offender treatment as part of his probation. Minn. Stat. § 609.3452, subd. 3 (1996), provides:
Treatment order. If the assessment indicates that the offender is in need of and amenable to sex offender treatment, the court shall include in the sentence a requirement that the offender undergo treatment, unless the court sentences the offender to prison.
(Emphasis added).
Based on the plain language of section 609.3452, the district court did not abuse its discretion by requiring appellant to undergo sex-offender treatment.
II.
Appellant also argues (1) that Minn. Stat. § 243.166 (1996) and Minn. Stat. § 609.3461 (1996) only apply to persons actually convicted of a criminal sexual conduct offense; and (2) that applying these statutes to persons not convicted of a criminal sexual conduct offense violates due process. While we recognize that, because appellant did not object at the sentencing hearing to the registration and DNA conditions of probation, appellant has waived these issues, we also disagree with both of appellant's arguments. See Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996) (this court will generally not consider matters not argued and considered in court below).
Minn. Stat. § 609.3461, subd. 1, requires that:
The court shall order an offender to provide a biological specimen for the purpose of DNA analysis * * * when:
(1) the court sentences a person charged with violating or attempting to violate section 609.342, 609.343, 609.344, or 609.345, who is convicted of violating one of those sections or of any offense arising out of the same set of circumstances;
Minn. Stat. § 243.166, subd. 1(a), provides:
A person shall register under this section if:
(1) the person was charged with or petitioned for a felony violation of or attempt to violate any of the following, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances:
* * * *
(iii) criminal sexual conduct under section 609.342, 609.343, 609.344; or 609.345[.]
(Emphasis added).
First, although appellant was not convicted of violating section 609.344, he was charged with violating that statute and was later convicted of third-degree assault based on the same set of circumstances. The plain language of section 609.3461, subd. 1(1), requires the district court to order a person who is charged with violating section 609.344 and then convicted of an offense arising out of the same set of circumstances to provide a DNA sample. Similarly, the plain language of section 243.166, subd. 1(a), also requires a person charged with violating section 609.344 and then convicted of an offense arising out of the same set of circumstances to register under that statute.
Second, because section 243.16, subd. (1)(a), and section 609.3461, subd. 1, serve a legitimate governmental purpose that is nonpunitive in nature, we conclude that the statutes are constitutional. See Kruger v. Erickson , 875 F. Supp. 583, 587-89 (D.Minn. 1995) (concluding that taking of DNA sample pursuant to Minn. Stat. § 609.3461 serves the legitimate governmental interest of assisting investigation and prosecution of crimes, outweighs the minimal invasion of person, and does not violate the Fourth Amendment); aff'd on other grounds , 77 F.3d 1071 (8th Cir. 1996); In re Welfare of C.D.N. , 559 N.W.2d 431, 433 (Minn.App. 1997) (concluding application of sex-offender registration statute to juveniles is nonpunitive), review denied (Minn. May 20, 1997). Our conclusions are consistent with recent opinions of this court. See Risk Level Determination of C.M. , 578 N.W.2d 391, 396 n. 4 (Minn.App. 1998) (noting constitutionality of registration statute because registration by itself does not implicate protected interest); State v. Merkt , No. C8-97-1664, 1998 WL202638, at *4 (Minn.App. Apr. 28, 1998) (defendant charged with first-degree criminal sexual conduct and second-degree murder, but convicted only of murder charge, required to register as predatory offender and to provide specimen for DNA analysis; statutes constitutional because they "serve a reasonable and appropriate legislative purpose that is not punitive in nature"); Boutin v. LaFleur , No. C1-97-1490 (Minn.App. Jan. 13, 1998) (holding that registration statute can be applied to offenders charged with, but not convicted of, criminal sexual conduct offense), review granted (Minn. Mar. 19, 1998).