Dakota County District Court File No. 19HA-CR-11-2999
Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Kevin J. Golden, Assistant County Attorney, Jenny R. Nystrom, Special Staff Assistant, Hastings, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Kirk, Judge.
Appellant challenges his convictions of first-, third-, and fifth-degree assault; two counts of first-degree burglary; engaging in a pattern of stalking conduct; and kidnapping. Appellant argues that (1) the evidence is insufficient to support his kidnapping and first-degree-assault convictions, (2) the district court erred by admitting several items of plainly inadmissible evidence, (3) the prosecutor committed misconduct by eliciting inadmissible testimony and misstating the evidence, and (4) the district court erred by imposing an upward durational sentencing departure based on improper grounds. Appellant asserts several additional claims in a pro se supplemental brief.
We affirm appellant's convictions. But because the district court imposed an upward durational departure based in part on improper aggravating factors and we cannot discern whether it would have imposed the same sentence based on the single proper aggravating factor, we reverse appellant's sentence and remand.
Appellant David Nelson and C.D. dated briefly in 1980, while they were in high school. The two lost contact until fall 2009, when Nelson contacted C.D. through a social-networking website. They began a long-distance romantic relationship in April 2010. C.D. ended the relationship in January 2011.
After the breakup, Nelson began sending C.D. insulting and threatening messages by phone, text message, and e-mail. Nelson contacted C.D. at home and at work, sometimes ten times a day, saying things like "I'm going to make your life miserable, " and that he would "come find" her. C.D. was alarmed and contacted the police, who told her to keep a record of the messages. Between February and April, C.D. documented numerous phone calls and voicemails, text messages, and e-mails in which Nelson suggested that C.D. kill herself, called her insulting names, referenced facts about her private life, and indicated that he had hacked into her computer.
On March 23, C.D. obtained a harassment restraining order against Nelson. Nelson was aware of the order but continued to leave C.D. threatening messages. C.D. moved residences in May. She did not give Nelson her new address and used a P.O. box so that he would not be able to find her.
On May 25, C.D. called police to report that someone had defecated on the concrete slab in front of her place of employment. Police were unable to find the person who did it but discovered that someone was living in a shed behind C.D.'s workplace. Police searched the shed and found food and clothing, including a pair of size 29 jeans. C.D. told police about the restraining order and that Nelson knew where she worked and wore size 29 jeans.
On July 26, as C.D. was leaving for work, she noticed that the light in the hallway immediately above her apartment door was out; it was on again when she returned home. The next morning, C.D. heard someone outside her apartment door at 7:20 a.m. and noticed that her hallway light was out again. She checked the light, realized the light bulb was loose, and screwed it back in; it went on. At 7:30, C.D.'s usual departure time, she started to leave her apartment and Nelson rushed at her, pushed her back into the apartment, and started hitting her in the head. C.D. momentarily lost consciousness. When she came to and tried to move, Nelson hit her in the head again. C.D.'s neighbor, P.S., heard a scuffle and banging sounds and knocked on C.D.'s door. P.S. heard C.D. asking for help in a weak voice. P.S. announced she was calling the police, and Nelson fled. C.D. then walked out of her apartment into the hallway, and P.S. saw that she was "totally covered in blood." Police and paramedics arrived shortly thereafter.
Paramedics took C.D. to the hospital where Casey Woster, M.D., treated her for several injuries. C.D. had a laceration on her arm and significant bruising on her wrists and hands, including one hand so swollen that it was initially believed to be broken. C.D.'s eyes were swollen shut. And C.D. had four lacerations on her head, ranging in size from five centimeters long to three inches long and requiring approximately 30 staples to close them. Dr. Woster expected that C.D.'s head injuries would leave permanent scars, which C.D. might be able to cover if her missing hair grew back. At the time of trial, nearly nine months later, C.D. was missing some hair and testified that she had scars running "the whole length of the back of [her] head."
Respondent State of Minnesota charged Nelson with third-degree assault, two counts of first-degree burglary (occupied dwelling and assault within the building), first-degree aggravated robbery, and engaging in a pattern of stalking conduct. The state subsequently added a kidnapping charge. Nelson agreed to plead guilty to one of the first-degree-burglary counts; the district court rejected the plea agreement after reviewing a presentence investigation report. The following month, the state amended the complaint a second time, adding a charge of first-degree assault. Shortly thereafter, Nelson discharged his lawyer and proceeded to trial pro se, with his former public defender as advisory counsel.
After a three-day trial, the jury acquitted Nelson of first-degree aggravated robbery but found him guilty of the other offenses and the lesser-included offense of fifth-degree assault. Based on the evidence adduced at trial, the jury also specially found that C.D. was "treated with particular cruelty" in connection with all of the offenses, all of the offenses involved "a high degree of sophistication or planning, " and all of the offenses occurred in a location where C.D. had "an expectation of privacy." The district court sentenced Nelson to 18 months' imprisonment for engaging in a pattern of stalking conduct, imposed a concurrent term of 240 months' imprisonment for first-degree burglary (assault within the building), and imposed a concurrent 117-month term for kidnapping. This appeal follows.
I. Sufficient evidence supports Nelson's kidnapping and first-degree assault convictions.
When reviewing a sufficiency-of-the-evidence challenge, we carefully analyze the record to determine whether the jury could reasonably find the defendant guilty of the offense charged based on the facts in the record and the legitimate inferences that can be drawn from them. State v. Buckingham, 772 N.W.2d 64, 71 (Minn. 2009). In doing so, we view the evidence in the light most favorable to the conviction, presuming the jury believed the state's witnesses and disbelieved any contrary evidence. State ...