This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-97-1772

State of Minnesota,

Respondent,

vs.

Michael Allen Grimmett,

Appellant.

Filed June 16, 1998

Affirmed

Amundson, Judge

Cass County District Court

File No. K2960728

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Earl Maus, Cass County Attorney, P. O. Box 3000, Walker, MN 56484 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Shumaker, Judge.

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

AMUNDSON, Judge

Appellant Michael Grimmett was convicted of second-degree assault, kidnapping, first-degree criminal sexual conduct, and terroristic threats. See Minn. Stat. §§ 609.222, subd. 1, 609.25, subd. 1(2), 609.342, subd. 1(c), (d), 609.713, subd. 1 (1996). Besides making several claims of trial error, Grimmett contends that the prosecutor committed prejudicial misconduct, and that the trial court abused its discretion in departing upward from the presumptive sentence. We affirm.

FACTS

On July 29, 1996, police responded to a hostage situation at a Cass County farm. Arthur Borman, the owner of the farm, called 911 to report that Grimmett was holding D.C. hostage in Borman's farmhouse. Jeff Lorenson, Borman's farmhand, also called 911 to report that Grimmett had stabbbed him and was holding a knife to D.C.'s throat. Police response teams surrounded the house, and BCA Agent Bruce Preece conducted telephone negotiations with Grimmett for over seven hours. These negotiations, during which Grimmett uttered numerous threats to kill D.C., were taped. Grimmett was charged with kidnapping and assaulting D.C. and Jeff Lorenson, sexually assaulting D.C., and uttering terroristic threats against D.C.

The trial court granted in part Grimmett's pretrial motion to exclude references made in the taped negotiations to Grimmett's criminal record. Borman, Lorenson, D.C., Agent Preece, and several members of the police response team testified about the lengthy incident. Borman testified that he had found Grimmett and D.C. naked on the couch and saw Grimmett holding a knife to D.C.'s back. Lorenson testified that he also came down and saw Grimmett and D.C. sitting naked on the couch, with two shotguns nearby. When Lorenson tried to grab the guns, Grimmett stabbed him.

D.C. testified that Grimmett threatened her with a knife to get her to disrobe. He demanded oral sex, while holding the knife to her side. D.C. testified that after Grimmett forced her to go upstairs and to help barricade them in a second-floor bedroom, he forced her to perform oral, anal, and vaginal sex. He also threatened to kill Lorenson, who was hiding on the third floor, and fired shots up through the ceiling to where he believed Lorenson was hiding.

The jury found Grimmett guilty of seven of the eight counts, acquitting him of the charge of kidnapping Lorenson. The trial court sentenced Grimmett to 360 months for first-degree criminal sexual conduct, 41 months for terroristic threats, and 54 months for kidnapping, all sentences to be served concurrently. In departing upwards on the first-degree criminal sexual conduct offense, the court found that Grimmett was a patterned sex offender and also a dangerous repeat offender.

D E C I S I O N

I.

Grimmett argues that the trial court abused its discretion and violated his constitutional right to a fair trial by failing to further redact the transcript of his negotiations with Agent Preece, and also by failing to strike police testimony that Grimmett had a "satanic tattoo" on his chest. "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed" absent a clear abuse of discretion. State v. Ashby, 567 N.W.2d 21, 25 (Minn. 1997).

The trial court struck numerous references in the negotiation transcript to Grimmett's criminal record. Although these references came out in the course of a long, rambling hostage negotiation, and some came out through D.C., they all originated with Grimmett and are inseparable from his threats and his attempts to convince police he was serious about the threats. Statements by a defendant revealing his criminal record, made to reinforce a threat, may be admitted in a terroristic threats prosecution. See State v. Stephenson, 361 N.W.2d 844, 845-46 (Minn. 1985). The court is not required to censor a defendant's own statements made at the time of the offense to delete references to prior "bad acts." See State v. Fratzke, 354 N.W.2d 402, 409 (Minn. 1984) (holding defendant's admission to another homicide, made as he drove away from scene, was relevant, and even if too unduly prejudicial to be admitted under Rule 403, was harmless error). Thus, the trial court was not required to strike even the more explicit references to Grimmett's criminal record. It was not error to fail to strike the vague references to Grimmett's record, and error, if any, was harmless given the overwhelming nature of the evidence.

Grimmett also argues that failing to strike an investigator's testimony about Grimmett's "satanic tattoo" was prejudicial error. Although a prosecutor generally has some responsibility to prepare his witnesses to prevent them from blurting out inadmissible evidence, if the prejudicial response is elicited at least in part from defense counsel, it is less likely to be found prejudicial error. See State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990) (noting police officer's opinion testimony, claimed to be a legal conclusion, was offered in response to leading questions by defense counsel as well as prosecutor); State v. Carlson, 264 N.W.2d 639, 641 (Minn. 1978) (noting prosecutor's duty to prepare witnesses but placing principal blame on defense counsel, who could have taken steps to prevent prejudicial, nonresponsive answer). The investigator's reference to Grimmett's "satanic tattoo" came in response to defense counsel's question whether the investigator had asked "to view any parts of [Grimmett's] body for possible evidence." Although Grimmett argues that defense counsel was only trying to elicit that Grimmett had no blood on him, that fact had already been established by the preceding question. The investigator could logically have concluded that the next question was directed at some other type of evidence. Even if we could find an abuse of discretion in failing to strike the investigator's answer, this error too would be harmless.

II.

Grimmett argues that the trial court prejudicially erred in allowing Investigator Diekmann, an investigator with the Cass County Sheriff's Office, to sit at the prosecutor's counsel table during trial. The supreme court has disapproved of the practice of allowing a police officer to sit at counsel table in a criminal trial. State v. Koskela, 536 N.W.2d 625, 630-31 (Minn. 1995); State v. Shallock, 281 N.W.2d 186, 187-88 (Minn. 1979); State v. Biehoffer, 269 Minn. 35, 49, 129 N.W.2d 918, 927 (1964); State v. Schwartz, 266 Minn. 104, 111, 122 N.W.2d 769, 774 (1963). Grimmett, however, points to no evidence that the investigator's presence at counsel table was prejudicial. He did not object to it at trial and therefore made no record on the issue. Given the overwhelming evidence against Grimmett and the lack of a record, we cannot find prejudice from allowing Investigator Diekmann to sit at counsel table.

III.

Grimmett argues that the trial court abused its discretion in allowing the negotiation tape, on which Grimmett could be heard uttering many threatening, profane, and disturbing statements, into the jury room. But the defense itself requested that the tape go to the jury rather than the transcript because it was the best evidence. Defense counsel actually argued from the tape in closing argument and encouraged the jury to listen to the tape. Grimmett may not complain of error he invited. See State v. Gisege, 561 N.W.2d 152, 158-59 (Minn. 1997) (defendant who invites error waives right to raise issue on appeal). Neither has Grimmett shown that the trial court abused its broad discretion in determining what exhibits should be allowed in the jury room during deliberations. See Minn. R. Crim. P. 26.03, subd. 19(1) (court shall permit jury to take trial exhibits, except depositions, to jury room); State v. Kraushaar, 470 N.W.2d 509, 514 (Minn. 1991) (trial court has broad discretion under rule 26.03, subd. 19).

IV.

Grimmett argues that the prosecutor committed prejudicial misconduct in his questioning of the defense investigator, which mentioned the fact that the investigator worked for the public defender's office. We conclude that although the prosecutor's line of questioning attempted to belittle the investigator by comparing his credentials with those of a licensed police officer, there was no intent to label Grimmett as a public defender client. Because the reference was not intentional, and because any prejudicial impact was both speculative and minimal, we find no prejudicial misconduct. See State v. Bonn, 412 N.W.2d 28, 30 (Minn. App. 1987) (treating prosecutor's inadvertent reference to defense attorney as public defender as being misconduct, while noting prejudicial impact was speculative and minimal), review denied (Minn. Oct. 21, 1987).

V.

Grimmett argues that the prejudicial effect of the alleged errors in this case should be considered cumulatively. See State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979) (considering cumulative effect of trial errors in reversing conviction). The state's evidence, however, is overwhelming. The state had a contemporaneous record of at least two of the crimes (kidnapping and terroristic threats) in the form of the taped negotiations, as well as physical evidence of sexual assault and of second-degree assault, virtual eyewitness testimony to one of the sexual assaults and one of the second-degree assaults, and the testimony of the sexual assault victim, D.C. Considering the unredacted references in the negotiation transcript and the question identifying Grimmett as a public defender and the seating of the police investigator at the counsel table, all to be error, there is still not sufficient cumulative prejudice to require reversal.

VI.

Grimmett challenges the trial court's greater-than-double departure, to 360 months, the statutory maximum for first-degree criminal sexual conduct. He does not challenge the trial court's findings that he meets the statutory criteria for a patterned sex offender and a dangerous repeat offender. See Minn. Stat. §§ 609.1352, .152. He argues nevertheless that the degree of departure (2.7 times the presumptive sentence) was an abuse of discretion.

The trial court's decision to depart from the presumptive sentence will not be reversed absent an abuse of discretion. State v. Halvorson, 506 N.W.2d 331, 336 (Minn. App. 1993). The patterned sex offender statute requires a minimum departure of double the presumptive sentence. Minn. Stat. § 609.1352, subd. 1(a). There are numerous aggravating factors to support the additional departure to 2.7 times the presumptive sentence. These include multiple penetrations, multiple forms of penetration, a very protracted incident with numerous gratuitous threats to kill, and the use of more than one weapon to coerce the victim. All of these constitute particular cruelty to a degree that amply supports the departure. See State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995) (gratuitous violence); State v. Allen, 482 N.W.2d 228, 232 (Minn. App. 1992) (multiple penetrations, kidnapping, and other aggravating factors), review denied (Minn. Apr. 13, 1992); State v. Yanez, 469 N.W.2d 452, 456 (Minn. App. 1991) (multiple penetrations and abduction), review denied (Minn. June 19, 1991). The trial court did not abuse its discretion in imposing the statutory maximum sentence for first-degree criminal sexual conduct.

Affirmed.