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STATE OF MINNESOTA IN COURT OF APPEALS A08-0133 State of Minnesota, Respondent, vs. Gabriel Lopez, Appellant. Filed April 28, 2009 Affirmed Minge, Judge Todd County District Court File No. K6-06-397 Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, Jenifer Kopischke, Certified Student Attorney, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent); and Charles Rasmussen, Todd County Attorney, Todd County Government Center, 221 First Avenue South, Long Prairie, MN 56347 (for respondent) Lawrence Hammerling, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public Defender, 540 Fairview Avenue South, Suite 300, St. Paul, MN 55104 (for appellant) Considered and decided by Hudson, Presiding Judge; Minge, Judge; and Connolly, Judge. SYLLABUS Appellate review of a district court's determination that a defendant must register as a predatory offender presents a mixed question of law and fact. Such review is conducted pursuant to the established standards: factual findings for clear error and legal determinations, de novo.

OPINION MINGE, Judge Appellant challenges the district court order requiring him to register as a predatory offender. Appellant argues that the district court erred by concluding that (1) appellant's controlled-substance conviction arose out of the same set of circumstances as his kidnapping charge; and (2) appellant's kidnapping charge was supported by probable cause. We affirm. FACTS On April 6, 2006, appellant Gabriel Lopez and his brother, Jose Lopez, arranged to sell methamphetamine to a confidential informant (CI). Law enforcement gave the CI $600 to make the purchase. Later that day, the CI met appellant's brother who sold the CI eight grams of methamphetamine in exchange for the $600. The brother also

transferred an additional 3.4 grams of methamphetamine to the CI for $300 to be paid at a later date. An arranged meeting on April 10 between the CI and appellant to collect the remaining $300 was cancelled. On April 16, 2006, the CI phoned a deputy sheriff stating that he and a juvenile were being held in appellant's garage until the CI paid $300 to appellant and appellant's brother. In response, the deputy sheriff arranged to place a paper bag containing $300 at a softball field. The CI, the juvenile, appellant and

appellant's brother all got in the same car and drove to the softball field, retrieved the paper bag, and returned to appellant's house. Upon returning to appellant's house, the CI

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and the juvenile drove away. The CI testified that, until they returned to appellant's house, he did not feel free to leave. Appellant was charged with aiding and abetting a controlled-substance crime in the first degree and two counts of aiding and abetting kidnapping. Appellant moved the district court to dismiss the kidnapping charges for lack of probable cause. Based on the information available, the district court concluded that, because a reasonable fact-finder could determine that the juvenile and CI were held involuntarily, there was probable cause to support the kidnapping charges, denied the motion, and ordered that the matter proceed to trial. Prior to trial, appellant pleaded guilty to the controlled-substance charge in exchange for a guideline sentence and dismissal of the kidnapping charges. Appellant filed a memorandum in opposition to the requirement that he register as a predatory offender, or, in the alternative, that he be allowed to withdraw his guilty plea. The district court granted appellant's request to withdraw his plea. The prosecution dismissed the kidnapping charges and a stipulated-facts trial was held on the controlled-substance charge. The district court found appellant guilty of the controlled-substance charge and ordered appellant to register as a predatory offender on the basis that the controlledsubstance conviction arose out of the same circumstances as the kidnapping charges. This appeal follows. ISSUES I. Did the controlled-substance conviction arise out of the same circumstances as the kidnapping?

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II. Did the district court clearly err in its determination that the kidnapping charges were supported by probable cause? ANALYSIS I. The first issue on appeal is whether the district court committed reversible error in determining that the controlled-substance and kidnapping charges arose out of the same circumstance. Minnesota's predatory-offender-registration statute states: 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, or aiding, abetting, or conspiracy to commit, any of the following, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances: .... (ii) kidnapping under section 609.25. Minn. Stat.

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