This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Sylvester Powell,


Filed June 8, 1999


Peterson, Judge

Hennepin County District Court

File No. 97053278

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Halbrooks, Presiding Judge, Davies, Judge, and Peterson, Judge.



Appellant Sylvester Powell was convicted of first-degree assault in violation of Minn. Stat. § 609.221 (1996). Because we conclude that the trial court did not abuse its discretion in admitting evidence, instructing the jury, or departing from the presumptive sentence, we affirm.


Powell was charged with assaulting his girlfriend, Sandra Tkaczik, in June 1997, causing great bodily harm in the form of permanent brain injury. Powell told police that Tkaczik had jumped on his back from behind and he "flipped" her over his shoulder. There was no eyewitness to the incident, and Tkaczik's brain injury caused a memory loss that destroyed her memory of the incident.

The assault occurred at the duplex apartment where both Powell and Tkaczik lived. The state presented testimony from Tkaczik's friends that Powell had been arguing with Tkaczik the previous day. Tkaczik's landlord, who lived on the first floor of the duplex, testified that on the day of the assault, Tkaczik visited him late in the evening. When they heard a key in the lock upstairs, the landlord testified, Tkaczik jumped up and ran into another room, stating that she wondered if it was Powell. When the person who had arrived upstairs left, Tkaczik asked him to confirm that it was Powell, which he did.

Tkaczik returned to her own apartment. Williamson heard Powell return a half-hour later. About 10 minutes after that, he heard arguing upstairs, starting from what seemed like the bedroom and moving into the living room. The landlord heard "heavy walking" from the bedroom to the living room, and then towards the kitchen; he then heard "bumping and wrestling" starting from the kitchen area and moving to the living room. When the noise stopped, he heard Powell say, "Now say something. Let me hear you holler now."

The prosecution presented evidence of Powell's past assaults on Tkaczik. The court allowed the state to introduce an application for an order for protection (OFP) and supporting affidavit that Tkaczik presented in April 1996. A temporary OFP was entered in that case but later dismissed when Tkaczik did not appear at a hearing. Tkaczik identified her signature on the OFP application and affidavit but was not asked any questions about the 1996 occurrence.

Powell testified that when he returned home after partying at a friend's house, he and Tkaczik argued about his use of the car. When he turned to leave, she jumped on his back. Powell thought she was going to hurt him, so he pulled her over his shoulder and she fell on the floor.

The trial court instructed the jury on self-defense, including the duty to retreat if reasonably possible. Although defense counsel did not object on the record to the duty-to-retreat instruction, he noted that he had argued against that instruction in chambers because the alleged assault occurred in Powell's home.

The jury found Powell guilty of first-degree assault. The trial court sentenced him to 240 months, the statutory maximum and a greater-than-double departure from the presumptive sentence of 98 months.



Powell argues that the trial court abused its discretion in admitting evidence of the application for an OFP and supporting affidavit signed by Tkaczik in April 1996, 14 months before the charged offense. This court reviews a ruling on the admission of evidence under an abuse-of-discretion standard. State v. Starkey, 516 N.W.2d 918, 925 (Minn. 1994).

In State v. Grube, 531 N.W.2d 484 (Minn. 1995), the supreme court affirmed the admission under the "catch-all" hearsay exception of two OFPs the defendant's deceased wife had obtained against him, the last one some two months before he murdered her. The court held the hearsay statements, which included the affidavits as well as the wife's testimony at the OFP hearings, bore adequate indicia of reliability. Id. at 489-90.

Tkaczik's affidavit, like the affidavit in Grube, was made under oath, was based on personal knowledge, and was made soon after the events related; moreover, Tkaczik had no reason to believe she would not be cross-examined, or at least questioned by a judge, concerning her allegations. Although Tkaczik eventually chose not to pursue a permanent OFP, this does not reflect on the truthfulness of her statements. There was abundant evidence at trial that Tkaczik had often returned to Powell despite past abuse.

Even if the trial court erred in admitting the OFP application and affidavit, Powell has not shown that without the error there is a reasonable possibility that a reasonable jury might have reached a different conclusion. See State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995) (harmless error test). The state presented ample Spreigl evidence of past abusive conduct, in the form of 911 calls, testimony from emergency room doctors and from Tkaczik's friends, and the testimony of Tkaczik's daughters who lived in the same house. There is no reasonable possibility that exclusion of the OFP evidence would have caused a reasonable jury to reach a different conclusion.


Powell argues that the trial court abused its discretion in instructing the jury on the duty to retreat. The trial court generally has considerable latitude in selecting the language of jury instructions. State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997). But the jury instructions must not materially misstate the law. Id.

Powell did not oppose the duty-to-retreat instruction, at least on the record, and his attorney agreed that it "comport[ed] with current Minnesota law." Powell, therefore, could be held to have waived his challenge to the instruction, even though his attorney apparently argued against it in chambers. See State v. Shatto, 285 N.W.2d 492, 493 (Minn. 1979) (holding that defendant by acquiescing in instructions forfeited right to challenge them on appeal, but noting that instructions were adequate); see also State v. Belssner, 463 N.W.2d 903, 911 (Minn. App. 1990) (holding challenge to instructions waived where no objections or requests for instructions made at trial, but noting that instructions fairly stated the law), review denied (Minn. Feb. 20, 1991).

This court has recently held that a defendant has a duty to retreat even within his own home. State v. Carothers, 585 N.W.2d 64, 67 (Minn. App. 1998), review granted (Minn. Oct. 29, 1998). Although the supreme court is currently considering that question, the duty to retreat was not a significant issue in this case. The prosecutor barely mentioned it in her closing argument and never argued that under the facts Powell had a duty to retreat. This is presumably because Powell testified that he was attacked from behind, depriving him of any time to consider whether to retreat before Tkaczik made physical contact.

Given Powell's testimony, the duty-to-retreat instruction was irrelevant to the jury's decision. If the jury believed Powell's testimony, it would have acquitted despite the duty-to-retreat instruction because the evidence indicated retreat was not reasonably possible. On the other hand, if the jury believed the state's evidence pointing to a lengthy physical altercation started by Powell, it would have had to convict even if no duty-to-retreat instruction had been given because the state's evidence showed Powell to be the aggressor. Therefore, we conclude there was no reversible error in giving the duty-to-retreat instruction.


Powell argues that the trial court abused its discretion in imposing a greater-than-double departure from the 98-months presumptive sentence to the 240 months statutory maximum. This court reviews a sentencing departure under an abuse-of-discretion standard. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). An upward departure is generally limited to double the presumptive sentence, but severe aggravating circumstances may support a greater-than-double departure. State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988).

The trial court relied on the following factors to justify the departure: (1) the severity of Tkaczik's injury; (2) the effects on her family; (3) Powell's failure to seek medical help for her; and (4) Powell's history of physically abusing Tkaczik. This court has agreed with a trial court's assessment that permanency of injury may not be used to aggravate first-degree assault because it is an element of the offense. State v. Elvin, 481 N.W.2d 571, 576 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). The permanency of the victim's injury, however, has been held to be a proper aggravating factor for first-degree assault where the victim's injuries met all four alternative definitions of great bodily harm. State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987), review denied (Minn. Sept. 29, 1987). Tkaczik's permanent brain damage satisfies the statutory definition in multiple ways and is a proper aggravating factor under Felix. See Minn. Stat. § 609.02, subd. 8 (1996) (defining great bodily harm).

A victim's pattern of returning to an abusive domestic partner constitutes particular vulnerability, which also supports the departure. Elvin, 481 N.W.2d at 576. The state presented ample evidence that despite numerous prior assaults, and one lengthy stay in a shelter, Tkaczik continued the relationship and was intimidated by Powell. The trial court also could consider Powell's lengthy delay in seeking medical attention for Tkaczik. We conclude that the trial court did not abuse its discretion in imposing a greater-than-double durational departure, which was supported by severe aggravating circumstances. See State v. Spain, 590 N.W.2d 85, 89 (Minn. 1999) (stating standard for greater-than-double departure).