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State v. Overweg

Supreme Court of Minnesota

January 23, 2019

State of Minnesota, Appellant,
v.
Everett Overweg, Respondent.

          Court of Appeals Office of Appellate Courts

          Keith Ellison, Attorney General, Saint Paul, Minnesota; and Travis Smith, Murray County Attorney, Slayton, Minnesota, for appellant.

          Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Appellate Public Defender, Saint Paul, Minnesota, for respondent.

         SYLLABUS

         1. Minnesota Statutes § 617.247, subd. 9 (2010), which requires an enhanced conditional-release term for a person previously convicted under section 617.247 or other statutes related to criminal sexual conduct, is unambiguous.

         2. The imposition of an enhanced conditional-release term was not an abuse of discretion by the district court.

Reversed.

          OPINION

          LILLEHAUG, Justice.

         This case requires that we decide whether the two-tier conditional-release term contained in the child-pornography statute, Minn. Stat. § 617.247, subd. 9 (2010), is ambiguous. We conclude that it is not, and that it was properly applied in this case. We therefore reverse the decision of the court of appeals.

         FACTS

         Everett Overweg has two criminal convictions at issue here: one for second-degree criminal sexual conduct, Minn. Stat. § 609.343, subd. 1(a) (2018), and the other for possession of pornographic works involving minors, Minn. Stat. § 617.247, subd. 4(a) (2010).

         The first conviction is for sexually touching the four-year-old sister of Overweg's girlfriend, conduct which took place on August 13, 2009. Overweg was charged with both first- and second-degree criminal sexual conduct. Pursuant to a plea agreement, Overweg pleaded guilty to the second-degree charge on January 11, 2010. The court dismissed the first-degree charge, stayed adjudication of the plea, and placed Overweg on probation under several conditions-including completion of an inpatient sex-offender treatment program.

         Overweg failed to complete the program, and thus violated his probation. On August 22, 2011, the district court lifted the stay of adjudication, convicted Overweg of second-degree criminal sexual conduct, stayed imposition of a sentence, and placed him on probation for 10 years. Because Overweg again violated his probation, on January 9, 2012, the district court vacated the stay of imposition and sentenced Overweg to 36 months, executed immediately, with a conditional-release term of 10 years.

         The second conviction arises from events surrounding the repair of a computer. In March 2010, D.B., the father of S.B. (a minor acquainted with Overweg), took a computer to a computer-service firm in Slayton. Both S.B. and Overweg previously had access to the computer. D.B. sought repair services because suddenly the computer was password-protected and he was unable to access any files or programs. The servicing technician discovered child pornography on the computer and notified law enforcement.

         S.B. told investigators that (1) Overweg had showed him how to download child pornography from the internet onto the computer, which was located in S.B.'s room; (2) Overweg had downloaded several child-pornography videos onto the computer; and (3) Overweg and S.B. had watched the videos of child pornography together. Overweg later admitted to law enforcement that ...


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