This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1891
State of Minnesota, Respondent,
vs.
Benjamin Paul Adams, Appellant.
Filed November 2, 2015 Affirmed in part, reversed in part, remanded Halbrooks, Judge
Anoka County District Court File No. 02-CR-13-7233
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney, Anoka, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant was convicted of kidnapping, second-degree assault, and terroristic
threats. After returning its guilty verdicts, the jury considered special interrogatories for purposes of the state’s motion for an aggravated sentence. Based on the jury’s responses,
the district court imposed (1) a double upward-durational departure of 210 months in
prison for kidnapping based on particular cruelty, (2) a consecutive sentence of 21
months for second-degree assault, and (3) a concurrent sentence of 24 months for
terroristic threats.
Appellant challenges his convictions, arguing that the district court erroneously
denied his request for an in camera review of the victim’s intake-assessment interview
taken at an emergency shelter. Appellant also raises several challenges to his sentences.
Because appellant has not demonstrated that the district court abused its discretion by
denying an in camera review, we affirm the convictions. Because we are not persuaded
that there was any error in imposing a double upward departure for kidnapping, we affirm
the 210-month sentence. But because the district court erred in imposing a separate
sentence for terroristic threats and a consecutive sentence for second-degree assault, we
reverse in part and remand for resentencing.
FACTS
Appellant Benjamin Paul Adams’s convictions arise out of events that occurred on
October 20 and 21, 2013. According to trial testimony, K.T. and appellant had been
involved in a volatile relationship for approximately five years. K.T. testified that in
September 2013, she installed TiSPY, a spyware application, on her phone at appellant’s
direction so that he could monitor her activities. About two weeks before the offense
date, appellant heard whispering through the phone speaker and noticed that the GPS
component of TiSPY placed K.T. at a hotel located next to her work. Appellant
2 suspected that K.T. was cheating on him. Appellant told K.T. that he wanted her to stay
with him so they could talk about what he heard. He picked K.T. up at her residence and
brought her to his home, which was in his automotive customizing shop. The shop had
surveillance cameras, and most of the events of October 20 and 21 were visually and
audibly recorded and played for the jury while K.T. described what occurred.
K.T. testified at trial that on the evening of October 20, appellant forced her to
listen to the recordings on the computer and explain what he was hearing. Appellant
thought he heard K.T. moan, although K.T. told appellant it was the TV and her snoring.
He demanded that she provide him with specific times when she masturbated so that he
could compare them with the time the GPS placed her at the hotel. Appellant became
upset because he did not think K.T. was taking him seriously, demanded to know who
she was sleeping with, and threatened to kill K.T. and himself if she did not provide
answers.
Appellant choked K.T., punched her in the face and broke her nose, smothered
her, hit her in the head with upholstery scissors, kicked her in the stomach, and banged
her head on the floor. Appellant also threatened to stab her with the upholstery scissors
and to tie her up and beat her until she died. At one point appellant held onto K.T.’s bra
strap like a leash while he had her lock the door because he thought he heard the police.
K.T. acknowledged that this may have provided her with an opportunity to escape, but
that she was too afraid. Although K.T. told police that appellant cut her wrists, she later
admitted cutting her own wrists with a razor blade so she would not have to endure the
3 assault anymore. K.T. explained that, due to surveillance-camera placement, the wrist-
cutting and scissor-hitting incidents were not visible.
The assault lasted several hours, continuing into the early morning of October 21.
K.T. eventually escaped by telling appellant that she heard the police in the back of the
shop, and appellant left her alone while he went to check. K.T. ran to a nearby church,
and appellant followed her. “[She] grabbed onto a street pole and wrapped [her] arms
and legs around it.” Appellant tried to remove her from the pole and told her to come
back with him because he loved her. Appellant eventually left, and K.T. ran down the
middle of a highway waving her arms and attracting the attention of two men who called
the police. K.T. was treated for a broken nose, a bruised kidney, blood in her urine,
bruising, and pain. The cuts on her wrists were also stitched. After the incident, police
referred K.T. to Alexandra House, an emergency shelter for victims of domestic and
sexual abuse. K.T. also testified at trial about prior instances when appellant assaulted
her, but stated that the October 21 incident “[was] nothing compared to any other time
he’s ever assaulted [me], ever.”
Appellant was charged with attempted first-degree murder, kidnapping, several
counts of assault, and terroristic threats. He waived his right to testify at trial. The jury
acquitted him of the attempted-murder counts but convicted him of the remaining counts.
This appeal follows.
4 DECISION
I.
Appellant argues that the district court abused its discretion by denying his request
for an in camera review of K.T.’s intake-assessment interview conducted at Alexandra
House. K.T.’s intake-assessment interview was in the possession of a third party, not a
governmental agency, and not in the possession or control of the prosecutor, prosecution
staff, or any others who investigated, evaluated, or reported to the prosecutor’s office.
See Minn. R. Crim. P. 9.01, subds. 1, 1a(1), 2. The intake-assessment interview is also
subject to a statutory privilege protecting domestic-abuse advocates from being
compelled to disclose information received from a victim without the victim’s consent or
court order. Minn. Stat. § 595.02, subd. 1(l) (2014). The district court considered the
factors in section 595.02, subdivision 1(l), and “fail[ed] to see how disclosing or
requiring the disclosure of any statement that [K.T.] made to Alexandra House outweighs
any interest in not disclosing it.” The district court also concluded, because “[w]e don’t
know if it’s going to be consistent, we don’t know if it’s going to be inconsistent . . . this
request fails in that there’s been no plausible showing that it’s material and favorable to
[his] case.”
The district court has “wide discretion in its discovery and evidentiary rulings.”
State v. Wildenberg, 573 N.W.2d 692, 696 (Minn. 1998). But the district court’s
discretion is limited by the defendant’s constitutional rights and must not conflict with
those constitutional guarantees. Id. “On appeal, we review the limits placed by the
5 district court on the release and use of protected records for an abuse of discretion.” State
v. Hokanson, 821 N.W.2d 340, 349 (Minn. 2012).
“There is no general constitutional right to discovery in a criminal case . . . .”
Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 846 (1977). Discovery in
criminal cases is governed by the criminal rules and is more limited than in civil cases.
State v. Deal, 740 N.W.2d 755, 760-61, 763-64 (Minn. 2007). Consistent with
constitutional requirements, the Minnesota Rules of Criminal Procedure provide for
disclosure without court order of certain “matters within the prosecutor’s possession or
control”: names and addresses of witnesses and other persons with information relating
to the case; written or recorded statements; documents and tangible objects; reports of
examinations and tests; criminal records of defendant and defense witnesses; exculpatory
information; and evidence relating to aggravated sentences. Minn. R. Crim. P. 9.01,
subd. 1. The rules also provide for a defendant to seek discretionary disclosure by court
order, Minn. R. Crim. P. 9.01, subd. 2, or by subpoena, Minn. R. Crim. P. 22.01, subd. 2.
State v. Hummel, 483 N.W.2d 68, 71 (Minn. 1992). But these rules do not permit the
defendant to have unfettered access to materials protected by the Minnesota Government
Data Practices Act or by other legislation. See Hokanson, 821 N.W.2d at 349.
When a defendant seeks access to material that is private and protected from
disclosure, such as the statutorily protected intake assessment in this case, the district
court conducts an in camera review of the confidential records to determine if the records
contain “relevant evidence that might help in his defense.” State v. Paradee, 403 N.W.2d
640, 642 (Minn. 1987). But a criminal defendant does not have a constitutional right to
6 have the district court review confidential material to determine if anything is
discoverable. See Hummel, 483 N.W.2d at 72. The defendant “must make some
plausible showing that the information sought would be both material and favorable to
his defense.” Id. (quotations omitted).
Based on our review of the record evidence, we conclude that the district court did
not abuse its discretion in denying an in camera review. Appellant did not make a
plausible showing that the intake-assessment interview would be material and favorable
to his defense. Nothing in the record indicates that K.T. had ever made false statements
concerning appellant’s threats to kill her and to stab her with the scissors, and these
threats were recorded by the surveillance video and played for the jury. Because the
district court did not abuse its discretion in denying an in camera review, we do not
consider if the district court should have ordered disclosure under section 595.02,
subdivision 1(l). We affirm the district court on this issue.
II.
Appellant asserts that the district court erred by imposing separate sentences for
kidnapping, second-degree assault, and terroristic threats because all three crimes were
committed during a single behavioral incident. “[I]f a person’s conduct constitutes more
than one offense under the laws of this state, the person may be punished for only one of
the offenses and a conviction or acquittal of any one of them is a bar to prosecution for
any other of them.” Minn. Stat. § 609.035, subd. 1 (2012). Additionally, a defendant
“may be convicted of either the crime charged or an included offense, but not both.”
Minn. Stat. § 609.04 (2012). But there is an exception to these provisions.
7 “Notwithstanding section 609.04, a prosecution for or conviction of the crime of
kidnapping is not a bar to conviction of or punishment for any other crime committed
during the time of the kidnapping.” Minn. Stat. § 609.251 (2012). When the facts are not
in dispute, the question of whether multiple offenses are part of a single behavioral
incident is a question of law that is reviewed de novo on appeal. State v. Ferguson, 808
N.W.2d 586, 590 (Minn. 2012).
Appellant argues that section 609.251 permits separate convictions and sentences
for kidnapping and only one other offense, not for all other offenses committed as part of
the same behavioral incident as the kidnapping. The state agrees. “[I]f, as occurred in
this case, a person commits a kidnapping, the person generally may be punished both for
the kidnapping and for the most serious crime committed during the course of the
kidnapping.” State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). Because
appellant can only be sentenced for kidnapping and the most serious crime committed
during the course of the kidnapping, which the parties agree is second-degree assault,
State v. Kebaso, 713 N.W.2d 317, 322 (Minn. 2006), we remand to the district court to
vacate the sentence for terroristic threats, State v. Jones, 848 N.W.2d 528, 538 (Minn.
2014).
III.
The state gave notice that it was seeking an aggravated sentencing departure on
the grounds of particular cruelty, but did not give notice as to which offense was
committed with particular cruelty. Appellant objected to the jury instructions because
8 they did not require the jury to consider offense-specific aggravating factors. The district
court overruled the objection.
Appellant argues that the jury instructions violated his Sixth Amendment right to a
jury trial. State v. Shattuck, 704 N.W.2d 131, 135-36 (Minn. 2005) (discussing Sixth
Amendment requirement that any fact increasing maximum sentence authorized by guilty
plea or jury verdict must be admitted by defendant or proved to jury beyond reasonable
doubt). Because this issue involves interpretation of constitutional law, our review is
de novo. Id. at 135.
It is well settled that the reasons for departure must relate to the offense being
sentenced, and the state must establish that the offense being sentenced was committed in
a particularly serious way. See State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009). In
making this determination, the district court must avoid “redundant enhancements.”
State v. Jones, 745 N.W.2d 845, 849 (Minn. 2008). For example, the district court cannot
use: reasons that are elements of the crime being sentenced; facts underlying separate
offenses, which includes uncharged or dismissed offenses; or “conduct underlying an
offense of which the defendant was acquitted.” Id.; see also Edwards, 774 N.W.2d at
602 (articulating principles to assist in determining what facts are “available” for
departure). Additionally, the district court may not base an upward departure on facts
contemplated by the legislature in setting punishment for the offense being sentenced.
Edwards, 774 N.W.2d at 602 (citing State v. Stanke, 764 N.W.2d 824, 827-28 (Minn.
2009) (holding that because the 40-year sentence for fleeing officer resulting in death
9 contemplated vulnerability of officer, it was not available as an aggravating factor in
sentencing)).
But when a defendant is convicted of multiple offenses arising out of a single
behavioral incident, the district court may use “overlapping” facts to depart “if those facts
show that the defendant committed the offense being sentenced in a particularly serious
way.” Id. at 604; see also Minn. Stat. § 244.10, subd. 5a(b) (2014) (“Notwithstanding
section 609.04 or 609.035, or other law to the contrary, when a court sentences an
offender for a felony conviction, the court may order an aggravated sentence beyond the
range specified in the sentencing guidelines grid based on any aggravating factor arising
from the same course of conduct.”).1 We note that the multiple sentences at issue in
Edwards were permitted under the multiple-victim exception to section 609.035. See
Edwards, 774 N.W.2d at 605; see also State v. Marquardt, 294 N.W.2d 849, 850-51
(Minn. 1980) (permitting one sentence per victim in multiple-victim cases “so long as the
multiple sentences do not unfairly exaggerate the criminality of the defendant’s
conduct”). Like the multiple-victim exception, separate sentences are permitted for
kidnapping and “any other crime committed during the time of the kidnapping.” Minn.
Stat. § 609.251. Because Edwards and section 244.10, subdivision 5a(b), permit the
1 This subdivision was effective August 1, 2009, and applies prospectively. 2009 Minn. Laws ch. 59, art. 5, § 8, at 365-67. In Edwards, the supreme court noted that the legislature “clarified the extent to which Minn. Stat. § 609.035 limits a district court’s ability to impose an upward departure.” 774 N.W.2d at 607 n.10. The supreme court did not apply this statute because it was enacted after the offense in Edwards was committed, but noted that the holding “is consistent with this statutory clarification because it allows a district court to consider overlapping facts arising out of a single behavioral incident as a basis for an upward departure when a defendant is sentenced for several offenses involving multiple victims.” Id.
10 district court to use “overlapping” facts to depart when the defendant is convicted of
multiple offenses for the same course of conduct, appellant has not demonstrated that his
constitutional rights were violated by the district court’s failure to require offense-
specific aggravating factors.
But even if the procedure used here was erroneous, the harmless-error standard of
review would apply. See State v. Chauvin, 723 N.W.2d 20, 30 (Minn. 2006). Based on
our review of the sentencing hearing transcript, the district court carefully sifted through
the factors found by the jury and only considered those factors that made the kidnapping
particularly cruel. Therefore, appellant has not shown any prejudice.
IV.
Appellant argues that the district court abused its discretion by imposing a double
upward departure for kidnapping. The “district court may depart from the presumptive
guidelines sentencing range only if ‘there exist identifiable, substantial, and compelling
circumstances to support a sentence outside the range on the grids.’” Tucker v. State, 799
N.W.2d 583, 586 (Minn. 2011) (quoting Minn. Sent. Guidelines 2.D.). “Substantial and
compelling circumstances are those demonstrating that the defendant’s conduct in the
offense of conviction was significantly more or less serious than that typically involved in
the commission of the crime in question.” Id. (quotation omitted). The sentencing
guidelines provide “‘a nonexclusive list of factors which may be used as reasons for
departure.’” Id. (quoting Minn. Sent. Guidelines 2.D.). One such factor is when the
victim is treated with “particular cruelty.” Minn. Sent. Guidelines 2.D.3.b.(2) (2013); see
also Minn. Stat. § 244.10, subd. 5a(a) (2014) (codifying nonexclusive list of aggravating
11 factors). “Particular cruelty involves the gratuitous infliction of pain and cruelty of a
kind not usually associated with the commission of the offense in question.” Tucker, 799
N.W.2d at 586 (quotation omitted).
“We review a district court’s decision to depart from the presumptive guidelines
sentence for an abuse of discretion.” State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015).
“If the reasons given for an upward departure are legally permissible and factually
supported in the record, the departure will be affirmed. But if the district court’s reasons
for departure are improper or inadequate, the departure will be reversed.” Edwards, 774
N.W.2d at 601 (quotation omitted). This court applies a de novo standard of review to
the question of whether a particular reason for an upward departure is valid. State v.
Jackson, 749 N.W.2d 353, 357 (Minn. 2008).
The jury considered and responded affirmatively to the following special
interrogatories: appellant repeatedly called K.T. offensive names; appellant demanded a
timeline of when K.T. masturbated; appellant inflicted extreme physical pain, extreme
emotional trauma, and extreme psychological pain on K.T.; appellant beat K.T. more
than six times; and appellant delayed K.T. from getting medical treatment. The district
court considered these factual findings and concluded that appellant treated K.T. with
particular cruelty by emotional humiliation, gratuitous infliction of pain, and delayed
medical treatment. The gratuitous infliction of pain, combined with a failure to render
medical aid, can support an upward departure based on particular cruelty. Cf. Tucker,
799 N.W.2d at 587 (listing cases in which supreme court affirmed departure based on
12 particular cruelty and failure to render aid). Because the district court’s reasons are valid
and supported by the record, we affirm the 210-month sentence for kidnapping.
V.
Finally, appellant argues that the district court erred by imposing a consecutive 21-
month sentence for second-degree assault. When a district court imposes an upward
durational departure and a departure as to consecutive service, severe aggravating factors
must be present. See State v. Williams, 608 N.W.2d 837, 840 (Minn. 2000). “An
appellate court looks to past sentences imposed on other offenders when determining the
propriety of consecutive sentencing” and applies an abuse-of-discretion standard of
review. State v. Richardson, 670 N.W.2d 267, 284 (Minn. 2003).
Although concurrent sentencing is generally presumed when an offender is being
sentenced for multiple current felonies, the guidelines identify specific situations when
consecutive sentencing is “permissive.” Minn. Sent. Guidelines 2.F.2.a. (2013).
Consecutive sentences are permissive when an offender is being sentenced for
kidnapping and second-degree assault because both crimes are on the list of offenses
eligible for consecutive sentencing. Minn. Sent. Guidelines 2.F.2.a.(1)(ii); 6 (listing
offenses eligible for permissive consecutive sentences). But the consecutive sentence
was not permissive under the circumstances of this case because the district court
imposed an upward departure for kidnapping. According to the comments:
[C]onsecutive sentencing is not permissive for multiple current felony convictions involving one victim and a single course of conduct if the court is giving an upward durational departure on any of the current conviction offenses. The Commission believes that to give both an upward durational
13 departure and a consecutive sentence when the circumstances involve one victim and a single course of conduct can result in disproportional sentencing unless additional aggravating factors exist to justify the consecutive sentence.
Minn. Sent. Guidelines cmt. 2.F.204 (2013).
The state agrees that the 21-month consecutive sentence was not permissive under
the guidelines because the district court imposed an upward departure for kidnapping.
Nonetheless, the state asserts that the consecutive sentence should be affirmed because
the district court made statements on the record that would constitute the “severe
aggravating factors” necessary to impose a consecutive sentence for the assault in
addition to the upward departure for the kidnapping. But the factors that the state cites
are the same factors that the district court considered when making the determination that
the kidnapping was committed with particular cruelty. “For each offense, there must be
substantial and compelling reasons to depart from the Minnesota Sentencing Guidelines’
presumptive sentences.” Richardson, 670 N.W.2d at 285 (reducing duration of sentences
for assault to the mandatory minimum when the record reflected that the rationale for
sentencing departure for kidnapping was appropriate but no separate reasons were given
to justify departure for assaults). Because these factors were relied on in imposing an
upward departure for kidnapping, they were not available for the district court to consider
in imposing a consecutive sentence for assault.
But even if there are departure reasons available for a consecutive sentence, the
record reflects that the district court considered and rejected the state’s request for a triple
upward departure “based on the interrogatories that the jury responded to” because the
14 court concluded the offense did not include “severe, aggravating circumstances.”
Because the district court already concluded that severe, aggravating factors did not exist,
we reverse appellant’s sentence for second-degree assault and remand to the district court
to impose the presumptive guidelines sentence of 45 months in prison concurrent with the
kidnapping sentence.2
Affirmed in part, reversed in part, and remanded.
2 This is the presumptive sentence according to the sentencing guidelines worksheets. Appellant has a criminal-history score of 4, and the middle of the presumptive range on the sentencing-guidelines grid for second-degree assault with a criminal-history score of 4 is 45 months in prison. Although the assault will be sentenced concurrently with the kidnapping, on remand, appellant’s criminal-history score is not increased for the kidnapping because the multiple current convictions are from the same course of conduct. See Minn. Sent. Guidelines cmt. 2B.108 (2013).