Aiding escape doesn’t call for predator tag, justices rule

Correction: The first paragraph of a previous version of this story misstated the registration category at issue. The category is “predatory offender.”

A woman who drove her husband to Ohio to escape arrest after he held several laundry workers hostage is not required to register as a predatory offender, the Minnesota Supreme Court has ruled.

The ruling means that Natasha Renae Berry, 42, will have her existing predatory offender registration vacated.

The Supreme Court found that her conviction for helping her husband avoid arrest did not arise from the same set of circumstances as the kidnapping and false imprisonment charges she once faced, but which were dropped.

The court’s 5-2 ruling, written by Associate Justice G. Barry Anderson, was issued Monday. Associate Justice Gordon Moore wrote a 14-page dissent, joined by Chief Justice Lorie Gildea.

Under Minn. Stat. § 243.166, subd. 1b(a) and case law, no matter how minor the crime, Anderson’s opinion notes, a conviction becomes registrable if it arises from the same set of circumstances as a dismissed predatory-offense charge.

But Assistant State Public Defender Jennifer Workman Jesness argued before the Supreme Court that the Berry case’s facts do not support registration. She urged justices to overturn rulings from the Goodhue County District Court and state Court of Appeals to the contrary.

“Close enough is not good enough in this case,” the lawyer told the bench during Supreme Court oral arguments.

Five of the seven justices agreed.

“Because we conclude that Berry’s conviction and charged offenses do not arise from the same set of circumstances, we reverse the decision of the Court of Appeals and remand to the District Court to vacate the registration requirement,” Monday’s ruling says.

Hostage situation

The case involves an incident in Red Wing on June 8, 2018.

As recounted in Anderson’s opinion, Natasha Berry entered Crothall Laundry Services early that morning and went into an office. Four minutes later, she left the building. One minute after that, her husband, Michael James Berry Jr., 42, entered carrying a gun.

Michael Berry once worked at the laundry and wanted his job back, the opinion recounts, but had been refused. Angry, he began yelling at managers and ordered them into a breakroom occupied by three other employees. All were held at gunpoint.

Just one minute after her husband entered the building, Natasha Berry reentered carrying a backpack. She approached her husband and told him it was time to leave. He left the breakroom, went out into a hallway and put the gun into her backpack. They then left and drove away.

Police searched the Red Wing hotel room where the couple had been staying and found clothes, food, a cell phone and other belongings, but the couple were gone. Police traced Natasha Berry’s cellphone to Interstate 90 near Rochester heading east. They were arrested the next day in Ohio.

Michael Berry was later convicted of kidnapping and sentenced to 36 months in prison. Natasha also was charged with kidnapping and false imprisonment—both registrable predatory offenses. But they were dismissed. She pleaded guilty to aiding an offender to avoid arrest, a non-registration offense, and received a stayed sentence.

During her District Court plea hearing, Berry’s attorney argued that she should not be required to register because her conviction arose from different circumstances than the dismissed charges.

Goodhue County District Court Judge Lawrence F. Clark denied her motion, but openly expressed regrets. “My take on it,” Clark said at the plea hearing, “was that she actually helped resolve the situation and avoid further violence.”

While skeptical that predatory offender registration should apply, Clark said, “I have no jurisdiction over deciding who gets to register and who does not.” Berry appealed.

The Court of Appeals, in a terse unpublished opinion affirmed Clark’s ruling. Both the conviction offense and the charged predatory offenses involved Berry providing criminal aid to her husband, that court ruled.

While the offense for which she was convicted did not involve the victims affected by the charged predatory offenses, the Court of Appeals found that the District Court met the required factors laid out by the state Supreme Court’s 2010 case State v. Lopez.

“There is sufficient overlap in the people, time, location and basic facts of the offenses to conclude that the offenses arose from the same set of circumstances,” Judge Tracy M. Smith wrote for a unanimous Court of Appeals on Jan. 21, 2020.

“The District Court did not err by requiring Berry to register as a predatory offender,” Smith concluded.

Lopez test

During Supreme Court oral arguments on Sept. 1, 2020, Workman Jesness said the lower courts got it wrong.

The Lopez test, she asserted, underlines that both the registrable and non-registrable offense for which Berry was charged must overlap “in terms of time, location, persons involved and basic facts.”

The conjunction “and” in that list is crucial, she said—all four factors must apply.  But here they don’t, she said.

The crime for which she was convicted didn’t happen in the same place as the hostage taking incident, she said, nor did it happen at the same time—it happened in a car on the road to Ohio. And it did not involve the same people. When she committed her crime, the public defender said, Berry’s husband was the only other person present.

“It is the state’s burden to prove there is an overlap and the state can’t carry that burden here today,” she said.

Assistant Goodhue County Attorney Christopher Schrader disagreed that Lopez requires presence of all four factors. But even if it did, he said, these case facts are a sufficient match.

He said that the relevant statute was intentionally written to require registration for people who were merely charged with predatory offenses. The Legislature aimed to prevent prosecutors from offering plea deals that prevent offenders from registering, he said. In short, he argued, the statute was specifically meant for offenders like Berry.

“The District Court correctly acknowledged that these cases are inextricably linked and inextricably interwoven,” he said.

Associate Justice Margaret Chutich asked Schrader about Judge Clark’s hesitancy and asked whether the fairness of the registration requirement isn’t an appropriate consideration for her court.

No, Schrader said, what matter is that even though Clark felt personally hesitant, he appropriately applied the statute and the Lopez test. Fairness is accounted for, he argued, by the judge’s determination that her charges were linked.

“I don’t know exactly why the court felt that way,” Schrader said of Clark’s reservations. “I did not feel that way when I charged the case and when I prosecuted the case.”

In the end, the majority ruled that the Lopez factors swing in Berry’s direction. None of her admissions demonstrate that she decided to help her husband flee before he acted, the court found, so the facts don’t meet the Lopez time test.

The majority also agreed that Berry’s crime didn’t happen in the laundry building, but mostly in an automobile on the road to Ohio, so the location test fails. Nor were the people the same. Her husband’s victims were the laundry workers; Natasha Berry’s victims were “the public at large” for helping an offender avoid arrest.

“In sum, we hold that Berry is not subject to the predatory offender registration requirement because her culpable conduct occurred after the completion 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,” Anderson writes.

Dissent

Moore’s dissent reaches the opposite conclusion.

While the majority reaffirms the Lopez test, Moore writes, it applies the factors incompletely. It also places too much significance on the District Court judge’s verbal comments, he found.

Moore criticizes the majority for finding clear error when neither party had asked for that. In a footnote, Anderson responds to that critique, saying the court’s responsibility is to review the record, “even though the assignments of error are inadequate.”

Moore’s dissent also finds reasonable evidence in the record to show Berry’s offenses were “inextricably interwoven,” qualifying her for predatory registration.

“The [Supreme Court’s] clearly erroneous rejection of that finding equates to ‘[a] definite and firm conviction that’ the District’s Court’s finding was ‘a mistake,’” Moore writes, quoting his own court’s 2013 Rasmussen v. Two Harbors Fish Co. ruling.

“I respectfully disagree with this rejection,” Moore continues. “The totality of the circumstances casts serious doubt on the [Supreme 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.”

Moore also rejects what he calls the majority’s “apparent bright-line determination” that registration is never required for anyone convicted of helping another offender escape or avoid arrest for a predatory offense.

That, he writes, is inconsistent with the statute’s plain language, as interpreted through Lopez.

“This inconsistency has troubling implications for future similar cases,” Moore’s dissent concludes. “I would respectfully affirm the Court of Appeals’ decision that the law requires Berry to register as a predatory offender.”

According to the majority opinion, Minnesota appears to be the only state where predatory offender registration applies, even when the offender was merely charged with a predatory offense, but gets convicted of something else.