Scott County District Court File No. 70CR1028231
Lori Swanson, State Attorney General, St. Paul, Minnesota; and Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Shakopee, Minnesota (for respondent)
David Merchant, Chief State Public Defender, Theodora Gaїtas, Assistant State Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and Stauber, Judge.
On appeal from his convictions of stalking and violating an order for protection, appellant alleges that the prosecutor committed misconduct at trial by making prejudicial statements about appellant and by eliciting inadmissible testimony and that the district court erred by imposing consecutive sentences for offenses stemming from a single behavioral incident. Because the prosecutor's statements did not constitute plain error, and because appellant's convictions qualify for permissive consecutive sentencing under the Minnesota Sentencing Guidelines, we affirm.
Appellant Don Antoine Jones and S.J. were married in 2009 and have two children together. In September 2010, S.J. informed appellant that she wanted a divorce. S.J. began to feel threatened and frightened by appellant's conduct toward her, and on October 11, 2010, she requested an order for protection. The district court granted the order for protection and served appellant with the order on October 13, 2010.
Appellant continued to call, text, and visit S.J. at her home and at work. Specifically, on or about October 16, 2010, appellant contacted S.J. via text message. At the time, S.J. was working as a security officer at the Trail of Terror, a Halloween attraction in Shakopee. One of appellant's texts to S.J. stated, "I see you; do you see me?" Over the course of the evening, appellant sent S.J. 33 text messages. S.J. felt "terrified, " "scared, " "violated, " and "threatened that [appellant] was going to hurt [her]."
Based on this activity, the Scott County Attorney's Office (the state) charged appellant with violating the order for protection, in violation of Minn. Stat. § 518B.01, subd. 14(d)(1) (2010). The state later amended its complaint to include one count of stalking, in violation of Minn. Stat. § 609.749, subd. 2(4), 4(b) (2010). Appellant pleaded not guilty to these charges.
At a pretrial hearing, the state moved to introduce relationship evidence, including "past acts and occurrences of domestic abuse" between appellant and S.J., pursuant to Minn. Stat. § 634.20 (2010). The state sought to introduce evidence that on October 18, 2010, appellant stole S.J.'s cell phone and chased and pushed S.J.; that on October 10, 2010, appellant came to S.J.'s home and injured her; that on October 6, 2010, appellant threatened S.J. at her work; and that on September 25, 2010, appellant grabbed and pushed S.J. The district court granted the state's motion, finding that the incidents were relevant to S.J.'s fear of appellant as well as to appellant's intent with respect to the charges. However, the district court limited S.J.'s testimony to domestic-abuse occurrences and prohibited her from testifying about appellant's mental health or other acts and from providing character evidence.
S.J. testified at appellant's trial. The jury found appellant guilty of both stalking and violating the order for protection. The district court sentenced appellant to 18 months in prison for stalking, and one year and one day for violating the order for protection, to be served consecutively. At the time, appellant was ...