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State of Minnesota v. Robert Arthur Litzau

April 8, 2013

STATE OF MINNESOTA, RESPONDENT,
v.
ROBERT ARTHUR LITZAU, APPELLANT.



Cass County District Court File No. 11-CR-10-1104

The opinion of the court was delivered by: Halbrooks, Judge

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

Affirmed

Considered and decided by Halbrooks, Presiding Judge; Larkin, Judge; and Rodenberg, Judge.

UNPUBLISHED OPINION HALBROOKS, Judge

Appellant challenges his convictions of second-degree burglary and failure to register as a predatory offender, arguing that the district court judge violated the Code of Judicial Conduct by failing to disqualify himself from presiding over his trial and that the district court abused its discretion by admitting irrelevant and unfairly prejudicial Spreigl evidence. We affirm.

FACTS

Appellant Robert Arthur Litzau has been required to register as a predatory offender since 1999. As of April 2010, Litzau's registered address was in Lino Lakes. Later that month, Litzau registered an address owned by I.A. on 24th Avenue in Backus as his primary address. Litzau indicated that he would begin residing there on May 5, 2010. On May 18, 2010, Litzau registered a Hazel Street address, also in Backus, as a secondary address, but did not change his primary address.*fn1 The Hazel Street address belonged to G.R., and G.R. allowed Litzau to stay with her when he told her that he needed a place to stay.

On May 27, 2010, following an argument, G.R. told Litzau to pack up and leave. Litzau refused to do so and continued to yell at G.R. G.R. decided to leave and locked the front door to her home, but was unable to lock the windows. Following G.R.'s departure, G.R.'s neighbors witnessed Litzau enter G.R.'s home, carry items out, and load those items onto a trailer. A criminal investigator responded and also observed Litzau's behavior. When questioned, Litzau told the investigator that he lived at the Hazel Street address. Another officer, who was familiar with Litzau and his registration requirements, arrived and overheard the conversation with the investigator. The officer asked Litzau to repeat where he lived, and, again, Litzau responded that he lived at the Hazel Street address. The officer then arrested Litzau for violating the predatory-offender registration law.

Litzau was charged with one count of second-degree burglary in violation of Minn. Stat. § 609.582, subd. 2(a)(1) (2008), and one count of failure to register as a predatory offender in violation of Minn. Stat. § 243.166, subd. 5(a) (2008). Ten days after Litzau was criminally charged, G.R. filed for and obtained an order for protection (OFP) against him.

The state and Litzau each sought and were granted removal of judges assigned to Litzau's criminal case. See Minn. R. Crim. P. 26.03, subd. 14(4) (allowing removal pursuant to compliance with timely filing of notice). As a result, the same district court judge who presided at G.R.'s OFP hearing was assigned to preside at Litzau's criminal case. Litzau submitted an informal letter to the district court judge and, that same day, a formal motion to the chief judge of the judicial district, requesting the judge's disqualification. Litzau argued that disqualification was necessary because the judge's impartiality might be reasonably questioned because he had presided at the OFP hearing. The state did not respond, and the chief judge denied Litzau's motion. The chief judge concluded that neither the OFP hearing transcript nor the order granting the OFP suggested that the district court judge demonstrated bias or impartiality against Litzau or that the district court judge bore "any deep seated or unequivocal antagonism towards [Litzau] that would render fair judgment impossible."

In preparation for trial, the state sought to introduce as Spreigl evidence Litzau's 2009 failure-to-register conviction, a 2011 charge for failure to register or providing false information to law enforcement, and two criminal-sexual-conduct convictions in order to prove intent, knowledge, and lack of mistake on the current failure-to-register charge. The district court ruled that the state could introduce the 2009 conviction, but denied the state's request to admit the other prior acts.

Following trial, the jury found Litzau guilty of both counts. The district court imposed concurrent sentences of 24 months' imprisonment on the failure-to-register conviction and 23 months' ...


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