This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Affirmed in part, reversed in part, and remanded
Ramsey County District Court
File No. K202800
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, Ramsey County Government Center West, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, Minnesota Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
††††††††††† Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.
††††††††††† Appellant Leandrew D. Miller challenges his conviction of second-degree controlled substance crime and felony fifth-degree assault, arguing that the district court violated his right to present a defense and abused its discretion in evidentiary rulings.† Miller also appeals a five-fold upward durational departure from sentencing guidelines for the felony fifth-degree assault charge.† Because Miller was not precluded from presenting his defense and any abuse of discretion in evidentiary rulings constituted harmless error, we affirm the convictions.† Because departure factors do not support a five-fold upward durational departure for the fifth-degree assault conviction, we reverse that sentence and remand for resentencing.
††††††††††† Deandra Duncan was stabbed during an early-morning domestic altercation at her home with appellant, her boyfriend.† Deandra Duncanís brother Frank Duncan and her uncle were involved in trying to separate the arguing couple.† Unique Duncan, Deandra Duncanís 11-year-old daughter, woke up during the argument.† She heard Deandra Duncan say, ďHe stabbed me,Ē and saw Miller with a knife.† Joe Duncan, Deandra Duncanís 14-year-old son, returned home from a friendís house shortly after the incident and heard Deandra Duncan say that she and Miller had been arguing and that she had been stabbed.† Frank Duncan saw Miller push Deandra Duncan twice.† She fell down and Frank Duncan intervened, holding Miller back.† Frank Duncan testified that Deandra Duncan had a knife while she was in the kitchen and was stabbed when Miller tried to take it away from her.† Deandra Duncan called the police.† When they arrived, four or five people came out of the house yelling and screaming.† Miller started to walk away from the house and Deandra Duncan pointed at him and yelled that he had stabbed her.† Miller did not stop until Officer Whisler drew his weapon.† Officer Whisler saw two plastic bags fall out of Millerís right hand as he raised his hands over his head.† Officer Whisler recovered the packages, which contained marijuana and 9.1 grams of cocaine.† Officer Ellison overheard Deandra Duncan say, ďHe stabbed me.Ē †He observed a thin one and one-half inch cut on Deandra Duncanís hip.† The physician who treated Deandra Duncan described her injury as a stab wound on the right lateral part of her abdomen with minimal bleeding.† Deandra Duncan also had an abrasion on her lip and very superficial marks on her chin.† Officer Ellison recovered a black-handled steak knife in the living room after Deandra Duncan pointed it out to him.
††††††††††† In the ambulance, Deandra Duncan told Officer Ellison that Miller, who was angry that she had left a club without him, had punched her in the face, they argued, and Frank Duncan tried to intervene.† Miller broke two telephones when Deandra Duncan tried to call for help and hit her again.† She ran into the kitchen and Miller stabbed her with the black-handled knife, but she was not sure how it happened.
††††††††††† At the hospital, Deandra Duncan told the EMT that she had been in an argument and was stabbed.† Deandra Duncan told the doctor that her ďsignificant otherĒ had stabbed her with a knife.† She was given morphine and a painkiller at the hospital before she was interviewed by a social worker.† Deandra Duncan told the social worker that Miller had stabbed her with a knife.† During an interview with police officer Hoff later that morning, Deandra Duncan reported that Miller had hit her in the face, choked her, and then stabbed her with a knife.†††††††††††
††††††††††† Miller was charged with second-degree violation of controlled substance statutes, second-degree assault, felony fifth-degree assault and violation of a no-contact order.† Deandra Duncan later recanted her version of the incident and said she did not know who had stabbed her.† Deandra Duncan also said that her uncle had the knife and tried to stab Miller and had stabbed her, and, on another occasion, said that she cut herself when her uncle and Miller tried to take the knife away from her.
††††††††††† At trial, Miller did not testify because the district court ruled that if he testified he could be questioned about prior incidents of domestic abuse.† Miller made an offer of proof that his testimony would have demonstrated that Deandra Duncan was the aggressor and had the knife and that her brother tried to take it away from her and they ďtussled over the knifeĒ after which Deandra Duncan was yelling ďhe stabbed me.Ē† Miller would have testified that he did not drop the bags of drugs that the officer found on the ground.
††††††††††† Over Millerís objection, the district court allowed testimony by Officers Whisler, Ellison and Hoff, the EMT, the doctor and the social worker to whom Deandra Duncan stated that Miller had stabbed her.† Frank Duncan, Unique Duncan, and Joe Duncan testified and were all impeached with the statements they had made to police about the incident.† The district court also allowed testimony about two prior incidents: (1) an altercation between Miller and Deandra Duncanís motherís boyfriend, Harold Jackson, that occurred when Jackson intervened in a fight between Miller and Deandra Duncan at her motherís home and (2) a 911 phone call from Deandra Duncan that resulted in police being dispatched to her home where she said that Miller had threatened to club her with a beer bottle and held a knife to her neck.
††††††††††† The district court denied Millerís request for a self-defense instruction.† The jury found Miller guilty of second-degree controlled substance crime and felony fifth-degree assault and not guilty of second-degree assault.
††††††††††† The district court sentenced Miller to 111 months in prison for second-degree controlled substance crime, concurrent with a prior unrelated 146-month sentence for first-degree assault.† The district court also sentenced Miller to 60 months in prison on the fifth-degree assault charge, consecutive to the 146-month sentence, representing a five-fold upward durational departure from the presumptive sentence.† Miller was also sentenced to a concurrent 90 days in jail for violation of the no-contact order.† This appeal followed.
D E C I S I O N
I.††††††††† Miller was not denied the right to present a defense
††††††††††† Miller claims the district courtís pre-trial ruling that he would be subject to questioning about prior incidents in his relationship with Deandra Duncan if he testified precluded him from testifying and presenting a defense.† We disagree.
††††††††††† Rulings on the admission of evidence and the scope of direct and cross-examination are at the discretion of the district court and will not be reversed absent an abuse of that discretion.† State v. Lee, 645 N.W.2d 459, 465 (Minn. 2002).† A defendant is only denied the right to testify if a ruling of the court prevents him from taking the stand at all.† See Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704 (1987) (holding that defendant could not take the stand because she had been hypnotized before trial denied her right to testify).† Where a court rules that a defendant is subject to impeachment by prior convictions or open to cross-examination on all issues relevant to a case, his right to testify or present a defense has not been compromised.† State v. Gassler, 505 N.W.2d 62, 67-68 (Minn. 1993).† Mere allowance of impeachment evidence in the event a defendant chooses to testify does not automatically implicate a defendantís constitutional right to testify in his own defense.† Id. at 68.
††††††††††† A defendant would need to show on appeal that the district court abused its discretion in permitting the disputed evidence because the probative value of that evidence was outweighed by its prejudicial effect.† Id.† Miller argues that the questions proposed by the prosecutor would have elicited inadmissible evidence of yet more bad acts.† But consistent with Minn. R. Evid. 404(b), it is within the district courtís discretion to admit evidence of a defendantís prior acts ďfor the purpose of illuminating the relationship of defendant and complainant and placing the incident with which defendant was charged in proper context.Ē† State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999) (quotation omitted).† We cannot say that the district court abused its discretion by ruling that Miller could be questioned about the relationship.† On appeal, Miller objects to specific questions, but since he chose not to testify, no questions were asked and we decline to speculate on the form of the questions the prosecutor might have posed.
††††††††††† Miller asserts that, because he did not testify, he was precluded from meeting his burden of production to receive a self-defense instruction.† Because the district courtís ruling did not prevent Miller from testifying, we find no merit in this argument.
II.††††††† Evidentiary rulings
a.†††††††† Assault of third party was evidence of Millerís relationship with the victim
††††††††††† Miller first objects to the district courtís allowance of testimony about an incident between Miller and Deandra Duncanís motherís boyfriend, Jackson, claiming that the evidence was impermissible bad-character evidence that prejudiced Miller.† The state argues that admission of this evidence was appropriate because Jackson was injured after attempting to prevent Miller from assaulting Deandra Duncan, making this additional relationship evidence.† We have previously recognized that evidence of a defendantís assaultive conduct toward a third person who is related to, or is a close friend of, the victim is generally admissible to show a highly ďstrained relationshipĒ between the defendant and the victim and to establish a motive and intent, and absence of mistake or accident on the part of the defendant.† State v. Copeland, 656 N.W.2d 599, 602 (Minn. App. 2003) (citing State v. Flores, 418 N.W.2d 150, 159 (Minn. 1988)).† Allowing testimony about the incident between Miller and Jackson was within the district courtís discretion.
††††††††††† We find no merit in appellantís claim that the district court did not give appropriate cautionary instructions prior to the admission of testimony about the incident with Jackson and a prior assault on Deandra Duncan.† The district court cautioned the jury about each incident.† Failure to repeat the cautionary instruction before the testimony of each witness to each incident was not error.
††††††††††† b.†††††††† Victimís out-of-court statements were admissible, or harmless
††††††††††† Miller concedes that Deandra Duncanís statements to Officers Whisler and Ellison and to her children were admissible.† And the portion of her statements to the EMT and doctor that she had been stabbed were also admissible.† Miller argues that Deandra Duncanís statements to Officer Hoff, the social worker, the EMT, and the doctor that Miller is the person who stabbed her were inadmissible hearsay.† Because the same information was in the record through admissible hearsay, we need not examine whether the complained-of statements were inadmissible hearsay to conclude that even if they were, the admission was harmless since the jury heard the same evidence from other witnesses.
††††††††††† Miller claims that a cautionary instruction should have been given before the doctor was questioned about Deandra Duncanís medical history, but no such instruction was requested, so Miller has waived that issue on appeal.† See State v. Ford, 322 N.W.2d 611, 615 (Minn. 1982) (recognizing that a defendantís contention that a cautionary instruction should have been given at the time the evidence was received is deemed forfeited if not raised before the trial court).† Furthermore, the doctor did not testify about any prior abuse, so no cautionary instruction was necessary.
††††††††††† c.†††††††† Chain of custody for cocaine was adequate
††††††††††† Miller claims that the stateís failure to show who had possession of the cocaine from the time a BCA employee sealed the evidence and placed it on a cart in the crime laboratory until Officer Whisler appeared with the evidence in court constitutes a failure to establish a chain of custody.† Miller asserts that the cocaine should not have been introduced at trial and therefore his conviction of the controlled substance crime must be reversed.† We disagree.† The record reflects that, at trial, Millerís counsel conceded that chain of custody had been established, and objected to the stateís recalling a witness to close any perceived gap in the chain of custody.† Under these circumstances, Miller has waived the right to contest chain of custody on appeal.
††††††††††† Furthermore, when considering chain-of-custody evidence, admissibility should not depend on the prosecution negating all possibility of tampering or substitution, but rather only that it is reasonably probable that tampering or substitution did not occur.† State v. Johnson, 239 N.W.2d 239, 242 (Minn. 1976).† Inconsistencies in the chain of custody may be considered by the jury in weighing the evidence.† Id.† ďIn the absence of any indication of substitution, alteration, or other form of tampering, reasonable probative measures are sufficient.Ē† Berendes v. Commír of Pub. Safety, 382 N.W.2d 888, 891 (Minn. App. 1986) (quotation omitted).† The district court did not abuse its discretion by admitting the cocaine into evidence.
††††††††††† Departures from presumptive sentences are reviewed under an abuse of discretion standard.† Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).† This court may review a sentence imposed by the district court ďto determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.Ē† Minn. Stat. ß 244.11, subd. 2(b) (2000).
††††††††††† Felony fifth-degree assault is a level four offense under the Minnesota Sentencing Guidelines.† See Minn. Sent. Guidelines V.† The state does not dispute that Millerís criminal history score for sentencing on this offense is five, not eight, as is shown on the sentencing worksheet submitted to the district court.† The presumptive guidelines sentence for a defendant with five criminal history points convicted of a level-four offense is 27 months in prison.† See Minn. Sent. Guidelines IV (sentencing guidelines
grid).† Because Miller was on probation for a first-degree assault conviction when he committed felony fifth-degree assault, consecutive sentencing was permissive.† See Minn. Sent. Guidelines II. F. 2.† But to impose a consecutive sentence, the district court must use a criminal history score of zero.† Id.† (stating that for each offense sentenced consecutive to each other, zero criminal history score shall be used to determine presumptive duration of sentence).† Using a criminal history score of zero, the presumptive sentence for Millerís felony fifth-degree assault was one year and a day.
††††††††††† The guidelines allow a sentencing court to depart from the presumptive sentence when there are substantial and compelling reasons to depart, but the supreme court has held that a departure should generally be no more than double the presumptive sentence.†
Neal v. State, 658 N.W.2d 536, 544 (Minn. 2003).† The ultimate question on appeal is whether the sentence imposed by the district court is commensurate with the gravity of the offense of conviction.† Id. at 548.
††††††††††† To support the departure, the district court cited Millerís violation of a no-contact order, the fact that he was under the influence of alcohol, his prior convictions for assault and domestic assault and drug-related offenses, the occurrence of the offense in the presence of children, and Millerís history of violence.† Miller argues that, among this list, only the presence of children is a legitimate and recognized basis for departure.† See State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982).† We agree.
††††††††††† The district court specifically found that Miller is a danger to public safety.† The state argues that the findings would support a sentence under the career offender statute, but the district court did not indicate that it intended to sentence under that statute.† In Neal, the supreme court determined that even under the career-offender statute, a quadruple durational departure to the statutory maximum is of questionable validity.† 658 N.W.2d at 544.† The supreme court stated that even where there are severe aggravating circumstances, ďcourts should use caution when imposing sentences that approach or reach the statutory maximum sentence.Ē† Id. at 546.
††††††††††† The record does not support the departure imposed in this case.† Because the sentence was based, in part, on an erroneous criminal history score, and it is not clear that the district court understood the extent of the durational departure, we reverse the sentence imposed for felony fifth-degree assault and remand for resentencing.†
††††††††††† Affirmed in part, reversed in part, and remanded.
 Miller pleaded guilty to violation of the no-contact order and a separate tab-charge of petty misdemeanor marijuana possession.† The marijuana charge was dismissed at sentencing.
 The error seems to relate to the use of three criminal history points to calculate Millerís criminal history, but those convictions were used to increase the level of the charge to a felony, and therefore cannot be used to calculate Millerís criminal history score.† See Minn. Sent. Guidelines II.B.6.