This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




State of Minnesota,



Brian Henley Gentry,


Filed September 16, 1997


Kalitowski, Judge

Hennepin County District Court

File No. 95068163

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Howard Bass, Special Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.



Appellant Brian Henley Gentry challenges his conviction of second-degree unintentional murder under Minn. Stat. § 609.19(2) (1994), claiming: (1) there was insufficient evidence to support his conviction; (2) the district court erred in denying his request for a jury instruction on circumstantial evidence; (3) the prosecutor's violation of discovery rules requires a new trial; (4) the district court erred in denying his motion to suppress the statements he made to police officers; and (5) the district court erred in departing upward from the presumptive sentencing guidelines. We affirm.



In determining whether the evidence presented at trial was sufficient to sustain the conviction, the reviewing court "examines the evidence in the light most favorable to the verdict and assumes that the jury disbelieved any testimony in conflict with the verdict." State v. Flournoy, 535 N.W.2d 354, 360 (Minn. 1995), cert. denied, 116 S. Ct. 972 (1996). The credibility of witnesses is for the jury to determine, and the resolution of conflicting testimony is exclusively within the jury's province. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).

Appellant argues that because the evidence indicates S.H. killed Gabriel, there was insufficient evidence to support his conviction for Gabriel's death. We disagree. The state presented both direct and circumstantial evidence to prove appellant's guilt. The following circumstantial evidence supports the jury's guilty verdict: (1) S.H. testified that on the date of Gabriel's death, Gabriel woke up at 9:00 a.m., was "cheerful" and "happy," drank a whole bottle of milk, played until appellant woke up at 10:30 a.m., and then watched T.V. and fell asleep at about 11:45 a.m.; (2) all the medical experts agreed Gabriel's death was caused by shaking; (3) according to Dr. Garry Peterson, if Gabriel was behaving normally at 10:30 that morning, the injuries must have occurred after that time; (4) between 10:30 and 11:45, both S.H. and appellant were with Gabriel watching T.V. until Gabriel fell asleep at about 11:45, after that time appellant was alone with Gabriel; (5) contrary to appellant's testimony, Dr. Peterson testified that after sustaining the brain injuries, Gabriel would not have been able to tolerate any playful bouncing around or being tossed up in the air; (6) there was no evidence of previous abuse in any of Gabriel's regular check-ups or in the autopsy; and (7) Gabriel's treating physician testified that there was appropriate contact between Gabriel and S.H., there were no signs of abuse or neglect, and S.H.'s growth and development were normal.

Quentin Swadinsky's testimony regarding appellant's confession to the murder was direct evidence linking appellant to Gabriel's death. See State v. Battin, 474 N.W.2d 427, 430 (Minn. App. 1991) (admissions constitute direct evidence), review denied (Minn. Oct. 23, 1991). Appellant argues that because Swadinsky was a liar with no credibility, his testimony should be disregarded. We disagree. It is for the jury to weigh the credibility of a witness. See id. ("The jury had the power to weigh the credibility of the witnesses and the evidence presented at trial.") Based on the evidence presented and testimony adduced at trial, we conclude there was sufficient evidence to support the jury's guilty verdict.


The refusal to give a proposed jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. O'Hagan, 474 N.W.2d 613, 620 (Minn. App. 1991), review denied (Minn. Sept. 25, 1991). Appellant argues the district court erred in denying his request for the following jury instruction on circumstantial evidence:

Circumstantial evidence may be of the highest and most conclusive kind of proof, but in order to reach a conclusion beyond a reasonable doubt on circumstantial evidence alone, all circumstances proved must be consistent with that conclusion and inconsistent with any other rational conclusion.

Consequently, in order to convict the defendant on circumstantial evidence alone, you must be convinced of his guilt beyond a reasonable doubt and to the exclusion of any rational hypothesis consistent with innocence.

We disagree.

First, the "inconsistent with any other rational conclusion" language is not mandatory. State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980). In concluding that the district court did not err in refusing to give the requested jury instruction, the supreme court noted that federal courts have held:

[I]f there is an adequate instruction on reasonable doubt, it is not error to refuse an instruction that circumstantial evidence must exclude every reasonable hypothesis other than guilt.

Id. at 313. In two cases, the supreme court approved jury instructions on circumstantial evidence that did contain the phrase in question, but the court did not state the phrase is necessary. Id. Here, appellant does not challenge the adequacy of the instruction on reasonable doubt, and consequently, the district court did not err in refusing to give the requested jury instruction.

Second, the language of the requested instruction indicates that only when the state attempts to convict the defendant on circumstantial evidence alone, the "inconsistent with any other rational conclusion" language may be given. Here, the state's case was not based on circumstantial evidence alone because Swadinsky's testimony regarding appellant's confession to the murder was direct evidence linking appellant to Gabriel's murder. See Battin, 474 N.W.2d at 430 (admissions constitute direct evidence).

Appellant's reliance on State v. Jones, 498 N.W.2d 44 (Minn. App. 1993), rev'd 516 N.W.2d 545 (Minn. 1994), is misplaced. Although this court in Jones held the district court abused its discretion when it refused to give the requested instruction, the supreme court found no abuse of discretion in the district court's failure to give the requested jury instruction. Jones, 516 N.W.2d at 548 n.4.


This court may not overturn a district court's "ruling on an alleged violation of discovery rules absent a clear abuse of discretion." State v. Adams, 555 N.W.2d 310, 311 (Minn. App. 1996). In exercising its discretion, the district court

should take into account the reason disclosure was not made, the extent of prejudice to the opposing party, the feasibility of rectifying the 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). "Generally, relief should be granted only if the defendant was prejudiced by the state's failure to comply with discovery rules." Adams, 555 N.W.2d at 311 (citation omitted). a. Minn. R. Crim. P. 9.01, subd. 1(2)

Minn. R. Crim. P. 9.01, subd. 1(2), provides that without an order of the court, the prosecuting attorney on request of defense counsel "shall provide defense counsel with the substance of any oral statements which relate to the case." Appellant argues the state's failure to disclose the substance of the oral statements of Dr. Mitchel Morey and Dr. Susan Roe violated Minn. R. Crim. P. 9.01, subd. 1(2), and this violation prevented defense counsel from effectively cross-examining Dr. Morey and Dr. Roe on the issue of diffuse axonal injury (DAI). We disagree.

First, the state disclosed to the defense that Dr. Roe's testimony would be consistent with Dr. Peterson's medical reports, and Dr. Peterson's testimony specifically concluded the vigorous shaking of Gabriel caused tearing of his nerve cells (DAI). Second, the fact that the defense counsel did not object when Dr. Peterson, Dr. Morey, and Dr. Roe testified concerning DAI suggests appellant knew Gabriel suffered DAI as a result of the violent shaking. Third, defense counsel on cross-examination questioned both Dr. Morey and Dr. Roe about whether they were familiar with Dr. Jan Leestma's book, Forensic Neuropathology, confirming Dr. Leestma was known to the defense prior to the trial. Fourth, the defense expert, Dr. Susan Amatuzio, testified that she specifically conducted a search of the medical literature regarding DAI and shaken-baby syndrome. Fifth, Dr. Amatuzio testified extensively on DAI at trial, and based on the medical evidence and her expertise, Dr. Amatuzio concluded Gabriel possibly sustained mild DAI. Under these facts, we conclude the district court did not err in ruling that appellant was not surprised or prejudiced by the state's introduction of DAI testimony.

b. Minn. R. Crim. P. 9.01, subd. 1(6)

Minn. R. Crim. P. 9.01, subd. 1(6), provides:

The prosecuting attorney shall disclose to defense counsel any material or information within the prosecuting attorney's possession and control that tends to negate or reduce the guilt of the accused as to the offense charged.

Appellant argues the state violated Minn. R. Crim. P. 9.01, subd. 1(6), when it failed to provide him with Dr. Morey's article and previous testimony in State v. Roers. Appellant claims the state's failure to disclose prevented the defense counsel from effectively confronting Dr. Morey about his DAI opinions. We disagree. Because Dr. Morey's article and testimony in Roers are not related to this case, they are not discoverable. See Minn. R. Crim. P. 9.01, subd. 1 (The prosecuting attorney must allow access to "all matters within the prosecuting attorney's possession or control which relate to the case."). (Emphasis added.)


The reviewing court is not bound by the district court's determination of whether the defendant's statement was voluntary; rather, its duty is to independently determine based on all the factual findings that are not clearly erroneous, whether or not the statement was voluntary. State v. Thaggard, 527 N.W.2d 804, 807 (Minn. 1995).

Appellant argues the officers applied the Reid interrogation techniques in questioning him, and therefore his statement was not voluntarily given. We disagree. For a confession obtained from a defendant during a custodial interrogation to be admissible, the state must prove by a preponderance of the evidence that the defendant knowingly, intelligently, and voluntarily waived his rights and that the confession was freely and voluntarily given. State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995). In State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978), the court stated:

In an ordinary case if the prosecutor shows that the [Miranda] warning was given and that the defendant stated he understood his rights and then gave a statement, the state will be deemed to have met its burden of proof, unless there is other evidence indicating that there was no knowing, intelligent, and voluntary waiver.

However, if there is other such evidence, then the trial court must make a subjective factual inquiry to determine whether under the totality of the circumstances the waiver was knowing, intelligent, and voluntary. This is the same kind of inquiry basically that is made to determine whether a statement is "voluntary" within the meaning of the traditional voluntariness requirement. Factors to be considered include age, maturity, intelligence, education, experience, ability to comprehend, lack of or adequacy of warnings, length and legality of detention, nature of interrogation, physical deprivations, limits on access to counsel and friends, and others.

Here, the police officers gave appellant Miranda warnings prior to questioning. Appellant stated he understood his rights and thereafter voluntarily gave a statement. Although the questioning lasted approximately five hours, appellant had a break during which he was not guarded, had access to a telephone, and was provided food and drinks. At no time during the interrogation did appellant request that the questioning be stopped. No threats or promises were made to appellant for the purpose of eliciting incriminating statements. We conclude the district court did not err in ruling that the statement was voluntary.


The district court has broad discretion in sentencing and will not be reversed absent a clear abuse of discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). In making a decision to depart from the sentencing guidelines, the court may consider the vulnerability of the victim and the particular cruelty toward the victim. Minn. Sent. Guidelines II.D.2.b (1), (2).

The district court ordered a 90-month upward departure from the presumptive 150-month sentence. At the sentencing hearing, the district court gave the following reasons for its decision to depart: (1) the victim was particularly vulnerable due to his young age; and (2) appellant treated the victim with particular cruelty. Under these facts, we conclude the district court did not abuse its discretion in sentencing appellant.