This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-95-2548

State of Minnesota,
Respondent,

vs.

Kevin Scott Karsjens,
Appellant.

Filed August 6, 1996
Affirmed
Harten, Judge

Mille Lacs County District Court
File No. K395451

Hubert Humphrey, III, Attorney General, Thomas Erik Bailey, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Willis, Presiding Judge, Davies, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

This appeal is from a judgment of conviction for first-degree criminal sexual conduct, terroristic threats, and kidnapping. Minn. Stat. '' 609.342, subd. 1(c), 609.713, subd. 1, 609.25, subd. 1(2), (3) (1994). Appellant Kevin Karsjens argues that he was denied a fair trial by the prosecutor's discovery violations and by a voir dire reference to the possibility that he would testify. He also contends that the trial court abused its discretion by denying his motion to disclose the victim's psychological records and in sentencing him. We affirm.

FACTS

Karsjens was charged with sexually assaulting, kidnapping, and threatening to kill L.G., the woman with whom he was living. Karsjens and L.G. had gone out together and were on their way to L.G.'s home when Karsjens struck and shattered L.G.'s windshield while they were discussing their relationship. L.G. pulled the car over to the side of the road after Karsjens threatened to jump out. Two police officers intervened, issued Karsjens a citation for criminal damage to property, and gave him a ride to a gas station with the understanding that he would not stay at L.G.'s home that night.

L.G. drove home, but unknown to her, Karsjens had preceded her and entered the house. After calling police for help in disabling the garage door opener to prevent Karsjens from entering the house, she awoke to find Karsjens in her bedroom threatening to kill her and her children and to have someone rape her. Karsjens prevented her from leaving or using the telephone. He then engaged her in a long conversation, ending with forced sexual intercourse. Later, she was able to flee the house in her nightgown and run to a neighbor's house.

The jury found Karsjens guilty of first-degree criminal sexual conduct, terroristic threats, and kidnapping. The trial court denied Karsjens' motion for a new trial and sentenced him to 150 months, an upward departure from the 98-month presumptive sentence for first-degree criminal sexual conduct, and a fine of $3,000.

D E C I S I O N

1. Discovery

Karsjens argues that the trial court abused its discretion by denying his motion for a mistrial based on the prosecutor's failure to disclose L.G.'s hospital records and some photographs. The imposition of sanctions for a violation of a discovery rule is a matter for the sound discretion of the trial court. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). The trial court's decision will not be reversed absent a clear abuse of discretion. State v. Moore, 493 N.W.2d 606, 608 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).

The discovery violations in this case were neither intentional nor prejudicial. The prosecutor was surprised that there had been no disclosure, and the trial court granted defense counsel the recess he requested to review the materials. The supreme court has found reversible error even for inadvertent nondisclosure and even when prejudice is arguably lacking. State v. Kaiser, 486 N.W.2d 384, 387 (Minn. 1992) (reversing for deliberate nondisclosure, although arguably not prejudicial); State v. Schwantes, 314 N.W.2d 243, 245 (Minn. 1982) (reversing for inadvertent nondisclosure that was prejudicial). But Karsjens cites no authority for reversing for a violation that was both inadvertent and nonprejudicial.

In considering the appropriate sanction for a discovery violation, the trial court should take into consideration the reason for nondisclosure, the extent of prejudice, the feasibility of rectifying any prejudice by a continuance, and any other relevant factors. State v. Ramos, 492 N.W.2d 557, 559 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993)). Considering all these factors, we conclude that the trial court did not abuse its discretion by denying the defense motion for a mistrial.

2. Court's Voir Dire Inquiry

Karsjens argues that he was denied a fair trial by the court's question during voir dire raising the possibility that Karsjens might testify. Neither the court nor the prosecutor may allude to the defendant's failure to testify. Minn. Stat. ' 611.11 (1994); State v. Naylor, 474 N.W.2d 314, 321 (Minn. 1991). Here, the court merely referred to the possibility that Karsjens might testify; the court was exploring the possible bias of a prospective juror who knew Karsjens. The supreme court has held that a reference during voir dire to the defendant's right not to testify is not reversible error. State v. Hill, 256 N.W.2d 279, 280 (Minn. 1977). The brief reference in this case was more indirect and less prejudicial than that in Hill.

3. Disclosure of the Victim's Psychiatric Records

Karsjens argues that the trial court abused its discretion by denying his request for disclosure of L.G.'s psychiatric records after the trial court had reviewed them in camera. See generally State v. Goldenstein, 505 N.W.2d 332, 345 (Minn. App. 1993) (applying abuse of discretion standard to order based on in camera review), review denied (Minn. Oct. 19, 1993). We have reviewed the records and find no abuse of discretion.

4. Upward Sentencing Departure

Karsjens argues that the trial court abused its discretion by imposing a 50 percent upward departure and in sentencing him to pay a $3,000 fine. A trial court's decision to depart from the guidelines will not be reversed absent a clear abuse of discretion. See State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).

The trial court properly cited the invasion of the victim's zone of privacy in support of the departure. Karsjens knew that both L.G. and the police expected him to stay elsewhere that evening and that L.G. was frightened and relying on police to protect her from him. This is far different from the situation in which the victim invites the defendant into her house on the night of the offense. Cf. State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988) (disapproving use of "zone of privacy" factor against invited guest), review denied (Minn. May 18, 1988). Although this court has affirmed the use of the "zone of privacy" factor in a case in which a restraining order had been issued, that holding did not imply that the factor could not be used in the absence of such an order. See State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991).

The $3,000 fine imposed by the trial court was greater than the statutory minimum fine of $500, but considerably below the statutory maximum of $40,000. It does not compare with the $20,000 fine that we held required findings on the ability to pay. State v. Martinson, 460 N.W.2d 342, 344 (Minn. App. 1990), review denied (Minn. Oct. 25, 1990). Findings on the ability to pay are required only if the court imposes a fine below the statutory minimum. State v. Patterson, 511 N.W.2d 476, 479 (Minn. App. 1994), review denied (Minn. Mar. 31, 1994). Any requirement under Martinson of findings on the ability to pay in this situation has been superseded by the mandatory minimum fine provision of Minn. Stat. ' 609.101, subd. 3(a). See State v. Lambert, 547 N.W.2d 446, 448 (Minn. App. 1996), pet. for review filed (Minn. June 10, 1996). The trial court did not abuse its discretion in imposing a $3,000 fine.

5. Other Issues

Karsjens has submitted a pro se supplemental brief arguing several issues that are based in part on matters outside the record. These issues do not warrant a reversal of his conviction or a retrial.

Affirmed.