STATE OF MINNESOTA IN COURT OF APPEALS A22-0054
State of Minnesota, Respondent,
vs.
Devon Griffin Seivers, Appellant.
Filed January 29, 2024 Affirmed Ross, Judge
Stearns County District Court File No. 73-CR-21-3355
Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul, Minnesota; and
Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and
Paul J. Maravigli, Special Assistant Public Defender, Minneapolis, Minnesota (for appellant)
Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and Schmidt,
Judge.
SYLLABUS
The residence of a runaway child’s custodial parent rather than the place the child
intends to reside determines venue under Minnesota Statutes section 627.15 (2020) for
prosecuting a criminal action for alleged abuse of a child, including criminal sexual
conduct. OPINION
ROSS, Judge
A Stearns County jury found appellant Devon Seivers guilty of third-degree
criminal sexual conduct based on evidence that he met a 14-year-old girl on Facebook and
sexually assaulted her after she ran away from her mother’s Stearns County home. Seivers
challenges his conviction on three grounds. He contends first that the state failed to prove
the element of venue because the child’s act of running away defeated venue in Stearns
County. He contends second that the state committed a Brady violation by withholding two
child-protection orders regarding the victim. And he contends third that the district court
violated his right to a fair trial by denying his request for advisory counsel. We hold that
Seivers’s venue challenge fails because the child’s custodial parent’s residence, not the
runaway child’s intent to reside elsewhere, determines venue. His Brady challenge fails
because the child-protection orders were immaterial and therefore not favorable to his
defense. And his fair-trial challenge fails because the district court acted within its
discretion by denying his request for advisory counsel. We therefore affirm.
FACTS
Thirty-eight-year-old Devon Seivers met a 14-year-old girl in November 2020 on
Facebook and began grooming her for a sexual relationship. The girl had been living with
her mother in her mother’s Stearns County house for about five years. She had occasionally
run away but returned home, where she had a bedroom and all her belongings. Seivers
communicated with the child through instant messaging and phone calls, claiming he was
2 24 years old and engaging her in coarse sexual conversation. About two months after
Seivers first met the girl online, she ran away again to her friend’s house in Benton County.
Seivers arranged to meet the girl in person. He drove to her friend’s house at night
on January 24, 2021, and he picked up both children. He drove them around, smoking
marijuana, until he reached La Quinta Inn in Brooklyn Park. Seivers rented a two-bed hotel
room. Seivers and the girl he had been sexually grooming occupied one bed, and her friend
stayed in the other. Seivers engaged in sexual intercourse with the girl. The next morning,
he drove the two children back to the friend’s home in Benton County. The girl told her
friend that “she wanted to go get a pregnancy test . . . and that her [vagina] was sore.” She
sent a Facebook message asking Seivers, “Did u [ejaculate] inside of me?” Seivers
responded: “I was pulling out[.] [M]y bad.”
The girl’s mother had been trying to locate her daughter since she disappeared from
home. She notified child-protection workers, who secured an ex parte emergency
protective-care order from juvenile court in Stearns County on January 20. She logged into
her daughter’s Facebook account and found the sexually explicit messages with Seivers.
She notified the girl’s social worker, who forwarded the messages to police. Police located
the girl and picked her up from her friend’s house on January 27.
A social worker reported to police on January 29 that the girl had been sexually
abused. The juvenile court held an emergency protective-care hearing that same day. It
ordered the temporary transfer of physical and legal custody to Stearns County Human
Services.
3 The state then charged Seivers with third-degree criminal sexual conduct (victim
between the ages of 13 and 15 and the offender more than 24 months older) in Stearns
County District Court. Seivers told the district court during a status hearing that he intended
to discharge his public defender. He also asserted that the prosecutor had not fulfilled the
state’s duty to disclose Brady material and that he sought all material the state possessed.
And he asked the district court to appoint advisory counsel to help him file motions while
stating that he refused to waive his right to a speedy trial to allow time for any advisory
counsel to prepare. The district court refused Seivers’s request to appoint advisory counsel.
Seivers therefore kept his public defender and did not waive his right to counsel. But five
days before trial, Seivers again announced that he intended to discharge his public
defender. The district court found that Seivers knowingly, intelligently, and voluntarily
waived his right to counsel. Seivers again asked the district court to appoint advisory
counsel. The district court denied his request, finding that it was impossible both to afford
advisory counsel sufficient time to prepare and to honor Seivers’s asserted right to a speedy
trial.
Immediately before the parties began questioning potential jurors for jury selection,
Seivers objected to having not received the girl’s child-protection records. The district
court informed Seivers that he could not obtain these confidential child-protection records
without having first made a Paradee motion, which he should have made long before trial.
Seivers represented himself at trial without counsel. The prosecutor and the district
court occasionally helped him navigate trial procedures. For example, when Seivers told
the jury about his “44-page criminal history,” the district court stopped the trial and
4 cautioned Seivers outside the presence of the jury, “I cannot in good conscience allow you
to continue going into and delving into your criminal history, especially with such
significant descriptions in terms of the drugs that you may or were convicted of possessing
or selling.” The prosecutor repeatedly helped Seivers admit exhibits into evidence. The
jury found Seivers guilty of third-degree criminal sexual conduct, and the district court
convicted him accordingly.
Seivers obtained the child-protection records after trial, covering the period from
January 20 to 29, and he filed a notice of appeal. Because the child-protection records were
not part of the district court’s record and therefore not properly before this court in this
appeal, we granted Seivers’s motion to stay the appeal to pursue postconviction relief.
Seivers petitioned for postconviction relief on three grounds, arguing that venue was
improper in Stearns County, that the state failed to prove the venue element, and that the
prosecutor committed a Brady violation by failing to disclose the child-protection records.
The district court denied Seivers’s petition. We granted Seivers’s motion to dissolve the
stay, and we now decide the issues he raises in this appeal.
ISSUES
I. Did the state offer sufficient evidence of venue?
II. Did the state’s failure to disclose the child-protection orders implicate Seivers’s
rights under Brady?
III. Did the district court act within its discretion by declining to appoint advisory
counsel?
5 ANALYSIS
Seivers challenges his conviction on three grounds. He contends first that the state
failed to prove the element of venue because the child’s act of running away defeated venue
in Stearns County. He contends second that the state engaged in a Brady violation by
withholding child-protection orders regarding the child. And he contends third that the
district court violated his right to a fair trial by denying his request for advisory counsel.
We address each contention in turn.
I
Seivers contends that the evidence was insufficient to sustain his conviction of third-
degree criminal sexual conduct. He does not question the sufficiency of the evidence on
the culpability elements of the crime, which involves an offender who is more than 24
months older than the victim and who engages in sexual penetration of a 14- or 15-year-
old child. Minn. Stat. § 609.344, subd. 1(b) (2020). Seivers instead questions only whether
the state proved venue, which the supreme court has implied the state must prove beyond
a reasonable doubt. See State v. Heidelberg, 12 N.W.2d 781, 782 (Minn. 1944) (holding
that the state had proven venue beyond a reasonable doubt); see also State v. Johnson, 995
N.W.2d 155, 161 (Minn. 2023) (observing that the supreme court has never “squarely
addressed the standard of proof” required to satisfy the venue requirement). Because
Seivers initially filed a direct appeal and then moved for a stay to pursue postconviction
relief, we review his sufficiency-of-the-evidence challenge using the same standard we
apply on direct appeal. See State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012). Seivers’s
challenge turns on interpreting Minnesota Statutes section 627.15, calling for our de novo
6 review. See State v. Henderson, 907 N.W.2d 623, 625 (Minn. 2018) (reviewing an
appellant’s sufficiency-of-the-evidence argument de novo because it turned on a question
of statutory interpretation). For the following reasons, our de novo review leads us to
affirm.
Seivers argues specifically that the state failed to prove the venue element because
the child no longer resided in Stearns County either at the time Seivers sexually abused her
or when the state discovered the abuse. The venue requirement arises from the constitution,
under which an accused generally has the right to be tried “by an impartial jury of the
county or district wherein the crime shall have been committed.” Minn. Const. art. I, § 6.
Minnesota Statutes section 627.01, subdivision 1 (2020), likewise provides that “every
criminal cause shall be tried in the county where the offense was committed,” except when
the Minnesota Rules of Criminal Procedure provide otherwise. We have interpreted this
codified constitutional right as making venue “an essential element of every criminal
offense” and requiring the state to prove beyond a reasonable doubt that the charged offense
“was committed in the county where the case is being tried.” State v. Pierce, 192 N.W.2d
83, 85 (Minn. App. 2010) (citing Minn. Stat. § 627.01, subd. 1 (2008)).
The legislature, however, may enact special venue statutes within that constitutional
framework. State v. Krejci, 458 N.W.2d 407, 411 (Minn. 1990). The legislature did so as
it regards the offense charged in this case; in criminal actions arising from alleged child
abuse, the crime “may be prosecuted either in the county where the alleged abuse occurred
or the county where the child is found.” Minn. Stat. § 627.15. The state charged Seivers
7 with third-degree criminal sexual conduct in Stearns County District Court. We therefore
must first determine whether Seivers’s charged offense constitutes “child abuse.”
It is clear that his charged offense does constitute child abuse as it regards the special
venue statute. That statute does not define child abuse, but Minnesota Statutes section
260C.007, subdivision 5 (2020), does, and the definition includes third-degree criminal
sexual conduct. Minnesota’s third-degree assault and first-degree murder statutes similarly
include third-degree criminal sexual conduct in the definition of “child abuse.” See Minn.
Stat. § 609.185(d) (2020); Minn. Stat. § 609.223, subd. 2 (2020) (adopting section
609.185(d)’s definition of child abuse). We conclude that third-degree criminal sexual
conduct meets the definition of child abuse as it bears on determining venue. In choosing
to prosecute Seivers in Stearns County under the special child-abuse venue statute, the state
therefore bore the burden to prove beyond a reasonable doubt that the child was found in
Stearns County. See id.; Pierce, 192 N.W.2d at 85. We next address whether the child was
“found” there.
We have already determined that a child “is found,” among other potential places,
where she resides. State v. Larson, 520 N.W.2d 456, 460 (Minn. App. 1994), rev. denied
(Minn. Oct. 14, 1994); see also State v. Rucker, 752 N.W.2d 538, 547 (Minn. App. 2008),
rev. denied (Minn. Sept. 23, 2008) (holding that a child is found in the county where the
child resided either when the abuse occurred or when the abuse was discovered). We focus
here on where the child resided at the time Seivers sexually abused her or at the time the
sexual abuse was discovered.
8 We are satisfied that venue was proper in Stearns County, where the child resided
with her mother both at the time Seivers abused her and at the time child-protection workers
and police discovered the abuse. Although no Minnesota court has defined a child’s
residence when determining venue under Minnesota Statutes section 627.15, caselaw
confirms the self-evident impression that a child’s residence is generally determined by the
custodial parent or parents. The supreme court has announced, “A child’s domicile follows
that of the parent to whom custody has been given.” Ray v. Ray, 217 N.W.2d 492, 493
(Minn. 1974). Because the child resided with her mother in Stearns County, Stearns County
was a proper venue for prosecution.
Seivers unconvincingly emphasizes the child’s runaway status and her alleged
intention to reside somewhere other than her mother’s Stearns County home. As a threshold
matter, Seivers’s argument rests largely on conjecture. He implicitly asks us to infer that,
because the child ran away from home, she must have no longer intended to reside with
her mother in Stearns County and instead intended to reside with her friend in Benton
County. This is a stretch, in addition to being irrelevant. The child frequently ran away
from home only to return. Seivers points to no direct evidence of the child’s supposed intent
to reside (rather than temporarily stay) at her friend’s home, and the jury certainly made no
finding supporting the argument. But the argument fails even if Seivers correctly interprets
the circumstances. We conclude that the child’s supposed intent to live elsewhere cannot
shield Seivers from prosecution and conviction. A runaway child has, by definition, only
temporarily departed from her lawful residence, because a “[r]unaway” is a child “who is
absent from the home of a parent or other lawful placement without the consent of the
9 parent, guardian, or lawful custodian.” Minn. Stat. § 260C.007, subd. 28 (2022). A
runaway might hope to live somewhere other than home, and she might even intend
earnestly to do so. But as a minor under her mother’s parental authority, she has no lawful
right to supplant her mother’s residential decision with her own. The residence of a
runaway child’s custodial parent rather than the child’s intended residence therefore
determines venue under Minnesota Statutes section 627.15 for prosecuting a criminal
action for alleged child abuse, which includes criminal sexual conduct committed against
a minor victim. Because the evidence informs us that the child’s mother never consented
to the child changing her residence from Stearns County, venue was proper there.
We are not persuaded toward a different understanding of residence by Seivers’s
reliance on the supreme court’s decision in Christensen v. Healey, 913 N.W.2d 437 (Minn.
2018). The Christensen court addressed a parenting-time dispute in which the parties
disagreed about whether the endangerment standard in Minnesota Statutes section
518.18(d)(iv) (2016), or the best-interests-of-the-child standard in Minnesota Statutes
section 518.175, subd. 5(b) (2016) applied. 913 N.W.2d at 440–41. It turned to the
definition of “physical custody and residence,” which is “the routine daily care and control
and residence of the child.” Id. (citing Minn. Stat. § 518.003, subd. 3(c) (2016)). The
Christensen court held that, because the father’s motion to increase parenting time affected
the mother’s daily control and care of the child, granting the motion would modify the
parties’ custody agreement, and the motion therefore could succeed only if the father met
the endangerment standard. Id. at 442. We read nothing in the supreme court’s reasoning
or its reliance on the definition of “physical custody and residence” to suggest that a
10 parent’s custody is severed by a child’s briefly running away to another household.
Physical custody and residence are instead necessarily intertwined, affording the parent
with physical custody the authority to provide daily care and control of the child. See Wolf
v. Oestreich, 956 N.W.2d 248, 254 (Minn. App. 2021) (“The principal location where a
child resides relates to physical custody, which involves the ‘routine daily care and control’
of that child.” (quoting Minn. Stat. § 518.003, subd. 3(c) (2018))), rev. denied (Minn. May
18, 2021). The Christensen analysis and holding do not alter our decision regarding a
child’s residence and venue for prosecution for child abuse.
We add that we can imagine circumstances in which Seivers’s theory that a runaway
child’s intent determines her residence could leave venue undiscernible. This would occur,
for example, if a child living with his Minnesota parent runs away intending to live with a
friend in Wisconsin but is abducted on the way, assaulted in an unknown Minnesota
county, and then dropped off in Wisconsin where he reports the crime. Under Seivers’s
theory, venue would not lie in the county of the parent’s residence, because the child did
not intend to live there at the time of the offense; venue would not lie in the county where
the crime was discovered or reported, because it was reported outside the state; and venue
cannot practically lie in the county where the crime occurred because the child does not
know where that is. We are confident that the legislature intended the venue statute to cover
all circumstances.
Our holding that the prosecution was properly venued in Stearns County also stands
firm in the face of Seivers’s alternative contention that the January 20 child-protection
order severed the mother’s custody and ended the child’s residence in Stearns County.
11 Seivers overemphasizes the impact of the order as it bears on residence. A juvenile court
may issue an ex parte order for emergency protective care if it finds that reasonable grounds
exist to believe that the child is endangered by her surroundings or conditions. Minn. R.
Juv. Prot. P. 40.01 (citing Minn. Stat. § 260C.151, subd. 6 (2022)). A resulting emergency
order is temporary, effective only until the juvenile court holds a protective-care hearing.
See Minn. R. Juv. Prot. P. 41.01, subd. 1(b) (prohibiting the state from holding a child in
emergency protective care for more than 72 hours without a hearing and an order for
continued protective care). At that hearing, the juvenile court determines whether the child
should be returned to home or placed in protective care. See Minn. R. Juv. Prot. P. 41.01,
subds. 1, 2(a). Because the January 20 ex parte order was merely a temporary grant of
custody to Stearns County pending a hearing, Seivers’s argument fails. The child’s mother
retained legal and physical custody on January 24 when the sexual assault occurred and on
January 29 when it was discovered and reported. The ex parte order therefore does not
invalidate venue in Stearns County.
Having established that a child’s intent does not determine residence as to venue in
child-abuse cases and that the home of the custodial parent (or parents) does, we easily
resolve Seivers’s evidence-insufficiency claim. We resolve insufficient-evidence claims
by exploring the record to determine whether the facts and their inferences would permit
the jury to find the defendant guilty beyond a reasonable doubt. State v. Griffin, 887
N.W.2d 257, 263 (Minn. 2016). We view the evidence in the light most favorable to the
verdict and assume the jury disbelieved contrary evidence. Id. The child’s mother testified
that they lived together in Stearns County. Because the direct evidence of the child’s
12 residence at her mother’s home permitted the jury to find that she resided in Stearns County
when Seivers assaulted her, the evidence was sufficient to prove venue.
II
We are also satisfied that the postconviction court properly rejected Seivers’s
argument that the state’s failure to disclose the child’s juvenile-protection orders violated
his right to due process under Brady v. Maryland, 373 U.S. 83 (1963). A prosecutor violates
a criminal defendant’s right to due process by suppressing material evidence favorable to
the defendant. Brady, 373 U.S. at 87. Seivers could establish that the state violated his right
to receive evidence under Brady only if he establishes three elements: (1) that the
undisclosed evidence was favorable to Seivers because it was either exculpatory or
impeaching; (2) that the evidence was either intentionally or unintentionally suppressed by
the prosecutor; and (3) that the absence of the evidence prejudiced his defense. Walen v.
State, 777 N.W.2d 213, 216 (Minn. 2010). Seivers contends that the child-protection orders
were material because they contradicted the state’s assertion that the child resided in
Stearns County when Seivers assaulted her. The contention fails because, for the reasons
we have just explained, the ex parte child-protection order temporarily interrupting the
mother’s custody of the child did not invalidate venue in Stearns County. There is therefore
no reasonable probability that the state’s disclosure of the child-protection orders would
have resulted in a different outcome at trial. The evidence was not material, and Seivers’s
Brady challenge fails.
13 III
Seivers contends finally that the district court deprived him of a fair trial by refusing
to appoint him advisory counsel. A district court may appoint advisory counsel to assist an
unrepresented defendant because either the court is concerned with the fairness of the
process or because of concerns about potential delays in completing the trial. Minn. R.
Crim. P. 5.04, subd. 2. But a self-represented defendant has no constitutional right to
advisory counsel. State v. Clark, 722 N.W.2d 460, 466 (Minn. 2006). We review a district
court’s decision declining to appoint advisory counsel for an abuse of discretion. State v.
Gunderson, 812 N.W.2d 156, 163–64 (Minn. App. 2012); see also Minn. R. Crim. P. 5.04,
subd. 2 (stating that a district court “may appoint advisory counsel to assist a defendant”
(emphasis added)). The district court’s decision not to appoint advisory counsel fell within
its discretion here. Seivers discharged his public defender and requested advisory counsel
only five days before trial while refusing to forgo his right to a speedy trial to allow for a
continuance so that any advisory counsel could prepare to effectively advise or assist him.
Left with no ability both to vindicate Seivers’s right to a speedy trial and to assign him
counsel with sufficient time to prepare, the district court applied its discretion rationally by
declining Seivers’s request for advisory counsel and honoring his request to maintain the
trial schedule.
DECISION
The state presented sufficient evidence to prove the residence of the runaway child’s
custodial parent, rather than the child’s intended residence, to establish proper venue under
Minnesota Statutes section 627.15. And Seivers fails to convince us to reverse his
14 conviction based on his Brady challenge or his contention that the district court was
required to appoint advisory counsel for him.
Affirmed.