This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2010).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ronald Lee Sandberg-Karnes,
Filed September 4, 2012
Mower County District Court
File No. 50-CR-10-1886
Lori Swanson, Attorney General, John B. Gallus, Assistant Attorney General, St. Paul,
Kristen Nelsen, Mower County Attorney, Austin, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and
In this appeal from a conviction of first-degree criminal sexual conduct, appellant
argues that the district court erred in admitting (1) hearsay statements of the three-yearold victim and (2) evidence of his prior felony-domestic-assault conviction. We affirm.
Appellant Ronald Lee Sandberg-Karnes and his girlfriend, T.S., moved in with his
sister, M.S., his sister’s boyfriend, C.W., and their two children. Appellant and T.S.
provided care for the two children while M.S. and C.W. were at work. On weekdays,
C.W. typically worked until 2:30 p.m., and M.S. typically worked until 5:00 p.m.
One afternoon, C.W. returned home from work around 3:00 p.m. and noticed that
his three-year-old daughter, C.A.W., was not behaving normally. C.W. asked C.A.W.
what was wrong, and she said that her “butt hurts.” C.W. asked why, and C.A.W.
responded that “[appellant] did it.” C.W. asked, “[Appellant] did what?” and C.A.W.
told him that appellant “stuck his pee pee in her butt.”
When M.S. returned home, C.W. asked M.S. to ask C.A.W. what was wrong with
her. C.A.W. told M.S. that her “butt hurt.” M.S. asked her if she had fallen, and C.A.W.
said “no.” M.S. asked her again, and C.A.W. said appellant’s name. M.S. asked her if
appellant had spanked her, and C.A.W. said “no.” M.S. “asked her a couple more times
. . . what happened,” and C.A.W. put her hand up by her mouth and whispered,
“[Appellant] put his pot pot in my butt.”
M.S. and C.W. took C.A.W. to a local medical center, where they were referred to
St. Paul Children’s Hospital. The next day, they took C.A.W. to the Midwest Children’s
Resource Center specialty clinic (MCRC) at St. Paul Children’s Hospital, where she was
interviewed and examined by Beth Carter, a Registered Nurse Case Manager who
specialized in assessing children who are alleging abuse.
Carter testified at trial that she had been in her position at MCRC for 13 years, had
evaluated more than 1,300 children, and had testified in child-abuse cases 50 to 60 times.
Carter follows certain protocol when examining and interviewing a child, including
naming body parts on a diagram of a human body. The interviews are video recorded,
and the examination rooms have observation areas where “law enforcement or child
protection” can watch the proceedings.
Carter testified that during the interview, C.A.W. was “very adamant” that
“[appellant’s] pot pot hurt [her] butt” and, despite a lack of details surrounding many of
her other statements, C.A.W. was “very clear” that “[appellant’s] pot pot went in [her]
butt.” Carter referred to diagrams of a girl and a boy and asked C.A.W to label body
parts. On the “boy diagram” C.A.W. identified the penis as “the pot pot.” Carter also
performed a physical examination, which showed “a little splitting of the skin or a
fissure, . . . one at about the twelve o’clock region and one at about the four o’clock
region” in C.A.W.’s anal area.
During a competency hearing, C.A.W. did not respond to the district court’s
questions. Following the hearing, the parties agreed that C.A.W. was not competent to
testify. The state moved to admit C.A.W.’s statements to her father, mother, and Carter.
Appellant conceded that C.A.W.’s statements to her parents were nontestimonial, but
argued that they lacked sufficient indicia of reliability to be admitted. The court found
C.A.W.’s statements to her mother and father were nontestimonial and, applying the
factors set forth in State v. Ahmed, 782 N.W.2d 253, 260 (Minn. App. 2010), found that:
(1) C.A.W.’s statement to her father was spontaneous;
(2) questioning by M.S. did not convey any
preconceived idea of what C.A.W. should say;
(3) the questions M.S. asked were not leading;
(4) there was no motive for C.A.W. to fabricate;
(5) the statement was not of the type that one would
expect a three-year-old child to fabricate;
(6) C.A.W.’s statement remained consistent over time;
(7) C.A.W. was seeking comfort from her mother and
father and from Carter, who was assisting her with her injury.
Based on these findings, the district court concluded that the statements to mother, father,
indicate . . . that there’s a trustworthiness or reliability that the
finder of fact should be allowed to hear these statements and
make a determination based upon those statements, plus other
physical evidence in the matter, plus other evidence that may
be introduced . . . to make a determination as to the credibility
of the statements made by the child to the parents, as well as
The state moved to impeach appellant with two felony convictions. Following the
close of the state’s case, the district court applied the Jones1 factors and granted the
state’s motion with respect to a conviction for felony domestic assault, finding that the
assault had impeachment value because it allowed the jury to see “the whole person,” that
State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978)
the offense occurred in 2009, and that appellant’s testimony and the credibility of the
witnesses in general was “extremely important.”
Appellant testified, but the state did not impeach him with the prior conviction
during his testimony. Following the close of the defense case, the state offered rebuttal
testimony from the primary investigating officer. During the rebuttal testimony, a video
recording of appellant’s statement to the officer was admitted into evidence and played
for the jury. The video recording contained the following exchange:
Officer: Okay. What do you mean by, “trying to make
Appellant: Looking to cut yards, cut grass, work on cars . . .
Officer: Okay. Nothing as far as getting a job someplace? . . .
Appellant: It’s hard for me because I’m a convicted felon.
Appellant: So, it’s not many places will hire me because of
the charge of I’ve had, which was a domestic assault, a
Appellant was convicted of first-degree criminal sexual conduct. The district
court sentenced appellant to 281 months in prison. This appeal followed.
“Evidentiary rulings rest within the sound discretion of the [district] court and will
not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203
(Minn. 2003) (citation omitted). “In criminal cases, offering hearsay statements against
the accused from declarants who do not testify and are not subject to cross-examination,
may implicate the constitutional right to confrontation.” Minn. R. Evid. 807 comm. cmt;
see U.S. Const. amend VI (“In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .”).
The Confrontation Clause bars “admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54,
124 S. Ct. 1354, 1365 (2004).
C.A.W. was deemed incompetent, and, thus, was
unavailable to testify. Appellant did not have a prior opportunity to cross-examine
Therefore, unless C.A.W.’s statements were nontestimonial, admitting the
statements violated appellant’s right to confrontation.
The Minnesota Supreme Court’s holding in State v. Scacchetti is directly on
point. 711 N.W.2d 508 (Minn. 2006). Scacchetti addresses whether an interview of an
alleged child sex-abuse victim by a nurse at MCRC is a testimonial statement. Scacchetti
holds, in part, that the statement is nontestimonial because the nurse at MCRC is not a
government actor or acting in concert with or as an agent of the government. 711
N.W.2d at 514-515.
The district court found that the local medical center referred C.A.W. to MCRC
and C.A.W. was taken there for a medical purpose. The district court found: “There was
no referral by any law enforcement agency to [MCRC]. There was no law enforcement
agent present at the center.”
The record supports these findings, and, thus, under
Scacchetti, the district court did not err in concluding that Carter was not acting in
concert with the government and that the statements were nontestimonial.
To support his argument that C.A.W.’s statements to Carter were testimonial,
appellant cites Bobadilla v. Carlson, 575 F.3d 785 (8th Cir. 2009).
That case is
distinguishable from this case. The interview in Bobadilla “was initiated by a police
officer,” the police officer “asked [the social worker] to assist him,” and “the interview
was conducted for the purpose of the criminal investigation.” 575 F3d at 791 (quotation
Appellant accurately argues that the U.S. Supreme Court’s opinion in Davis v.
Washington, 547 U.S. 813, 126 S. Ct. 2266 (2006), is controlling authority on evaluating
the testimonial nature of a statement. But Davis does not compel a result contrary to
Scacchetti. In Davis, the Supreme Court held that statements to a 911 operator were
nontestimonial because they were made in the context of an ongoing emergency. 547
U.S. at 828, 126 S. Ct. at 2277.
Evaluating the status of 911 operators as law-
enforcement officers, the court noted:
If 911 operators are not themselves law enforcement officers,
they may at least be agents of law enforcement when they
conduct interrogations of 911 callers. For purposes of this
opinion (and without deciding the point), we consider their
acts to be acts of the police. . . . [O]ur holding today makes it
unnecessary to consider whether and when statements made
to someone other than law enforcement personnel are
Id. at 823 n.2, 2274 n.2 (emphasis added).
Because Davis does not draw a conclusion
that statements made to non-law-enforcement personnel are testimonial, it does not
compel us to disregard Scacchetti’s holding that a child’s statements to an MCRC nurse
are nontestimonial because the nurse is not a law-enforcement officer or agent.
Appellant cites numerous law-review articles and cases from other jurisdictions to
support his argument that C.A.W.’s statements to Carter were testimonial and thus,
barred under the Confrontation Clause. But, unlike Scacchetti, none of these sources is
controlling authority. Scacchetti is directly on point and compels our conclusion that
C.A.W.’s statements to Carter were nontestimonial.
Accordingly, admitting the
statements did not violate the Confrontation Clause.
Appellant argues that the district court abused its discretion in admitting C.A.W.’s
statements to M.S., C.W., and Carter2 under the residual exception to the hearsay rule.
“A determination that a statement meets the foundational requirements of a hearsay
exception is reviewed for an abuse of discretion.” Holt v. State, 772 N.W.2d 470, 483
(Minn. 2009). “On appeal, the appellant has the burden of establishing that the [district]
court abused its discretion and that appellant was thereby prejudiced.”
N.W.2d at 203 (citation omitted).
Respondent argues that appellant waived a challenge to Carter’s testimony under the
residual hearsay exception because he argued in his principal brief only that admitting the
testimony was error because C.A.W.’s statements were testimonial and inadmissible
under the medical-diagnosis exception. In his reply brief, appellant argues that the
district court abused its discretion in admitting C.A.W.’s statements to Carter under the
residual exception. But issues raised “for the first time in [an appellant’s reply brief in a
criminal appeal] having not been raised in the respondent’s brief,” are “not proper subject
matter for [the] appellant’s reply brief,” and they may be deemed “waived” and be
“stricken” by an appellate court. State v. Yang, 774 N.W.2d 539, 558 (Minn. 2009). We
agree that appellant failed to raise the issue in his principal brief. However, because the
evidentiary issues are legally and factually intertwined, we address the issue in the
interests of justice. See Minn. R. Civ. App. P. 103.04 (allowing appellate court to review
matter in the interest of justice).
The district court ruled that C.A.W.’s statements to M.S., C.W., and Carter were
admissible under the residual exception to the hearsay rule, which provides:
A statement not specifically covered by Rule 803 or
804 but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the
court determines that (A) the statement is offered as evidence
of a material fact; (B) the statement is more probative on the
point for which it is offered than any other evidence which
the proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and the interests of
justice will best be served by admission of the statement into
Minn. R. Evid. 807. Applying Rule 807, the district court found that (1) “any statements
[C.A.W.] made to a non-governmental agency . . . are material as to how she was
injured,” (2) C.A.W.’s statements were “probably the only probative evidence available”
to explain her injuries, (3) the interests of justice would be served by introducing the
statements, and (4) admitting the statements complied “with the spirit and intent of the
rule.” Because the evidence primarily consisted of inconclusive medical findings and
C.A.W.’s statements, the district court did not abuse its discretion in concluding that the
statements were material and the most probative evidence regarding the cause of
C.A.W.’s injury and that admitting the statements served the interests of justice and the
general purpose of the rules of evidence.
Admitting a hearsay statement under rule 807 requires that the statement have
“circumstantial guarantees of trustworthiness” equivalent to the hearsay exceptions
identified in rules 803 and 804. Minn. R. Evid. 807. “In considering the reliability of
statements offered under the residual exception, courts follow the ‘totality of the
circumstances approach, looking to all relevant factors bearing on trustworthiness to
determine whether the extrajudicial statement has circumstantial guarantees of
trustworthiness’ equivalent to other hearsay exceptions.” State v. Ahmed, 782 N.W.2d
253, 260 (Minn. App. 2010) (quoting State v. Robinson, 718 N.W.2d 400, 408 (Minn.
Relevant circumstances under Minn. R. Evid. 807 “are those circumstances
actually surrounding the making of the statements.” Id. These circumstances include:
whether the statement was spontaneous, whether the
questioner had a preconceived idea of what the child should
say, whether the statement was in response to leading
questions, whether the child had any apparent motive to
fabricate, whether the statements are of the type one would
expect a child of that age to fabricate, whether the statement
remained consistent over time, and the mental state of the
child at the time of the statements.
Id. (citing Robinson, 718 N.W.2d at 410).
The district court found that (1) there was “no indication” that C.A.W. had a
motive to fabricate, (2) C.A.W. “was friendly with [appellant] until this . . . happened,”
(3) C.A.W.’s disclosures were not “the type of thing that a 3 or a 3 1/2 year old child
would fabricate or talk about,” (4) C.A.W.’s statements to C.W., M.S., and Carter
remained consistent over time, and (5) C.A.W.’s mental state in giving the statements
was to seek comfort from the caregivers. The court found:
The child was hurt. The child tried to get comfort from Father
and tried to get comfort from Mother. The child . . .
understood that when she was talking to [Carter], the reason
. . . was to give the child assistance for her injury or hurt. The
nurse was very emphatic in explaining that to the child.
Appellant offers alternative explanations for the child’s statements: that her mental
state was exhausted and overstimulated, that she mentioned appellant’s name because he
was “her caretaker and she adored him,” and that children of her age “often engage in
magical thinking – confabulating cause and effect.”
But providing an alternative
explanation does not make the district court’s determination an abuse of discretion. The
record supports the district court’s findings that C.A.W. did not have a motive to
fabricate, the disclosure was not the type of thing that a child of her age would fabricate,
the statement remained consistent over time, and C.A.W.’s mental state was to seek
comfort from the caregivers.
1. C.A.W.’s statements to C.W.
The district court found that C.A.W.’s statements to C.W. were spontaneous:3
In this case, we have a child that makes a spontaneous
statement to the father . . . who first sees her after he comes
from work on the day the alleged injury occurred, and she
makes a comment to the effect that her butt hurts. When
further inquiry was made by the father, there was an
indication that either at that point or at a later point when
mom gets home, she makes an expression as to how her butt
was hurt that day. Mom comes home . . . and dad says, “She
told me her butt hurts, but she won’t tell me why. I asked her
The findings that C.A.W.’s statement was “a comment . . . that her butt hurts,” and that
the statement occurred when C.W. “first sees her after he comes from work” indicate that
C.W. did not have a preconceived idea of what C.A.W. should disclose. And the finding
Respondent asserts that the district court found that C.W. did not have a preconceived
idea of what C.A.W. should say, but the district court did not make a finding about this
factor with respect to C.W.
that C.W. said, “She told me her butt hurts, but she won’t tell me why. I asked her why,”
indicates that C.W.’s questions to C.A.W. were not leading. The findings demonstrate
that C.A.W.’s statements to C.W. were spontaneous, were not given in response to
leading questions or questions asked by C.W. with a preconceived idea of what C.A.W.
should disclose. Accordingly, the district court did not abuse its discretion in admitting
C.A.W.’s statements to C.W. under the residual exception to the hearsay rule.
2. C.A.W.’s statements to M.S.
Regarding C.A.W.’s statements to M.S., the district court found that M.S. asked
“mostly open-ended questions” that were “not directing the child to make a specific
response.” The district court found that M.S. was surprised by what C.A.W. disclosed to
her and that the questions she asked, including “Did you fall?” “Did he spank you?” and
“Well, how did he hurt you?” indicated that M.S. did not have a preconceived idea of
what C.A.W. should say.
Respondent contends that the court found that C.A.W.’s
statements to M.S. were spontaneous, but the district court did not make a finding on this
factor with respect to M.S. However, the findings that C.A.W.’s statements were given
in response to open-ended questions and to questions asked without a preconceived idea
of what C.A.W. should say, demonstrate that C.A.W.’s statements to M.S. were
spontaneous. Accordingly, the district court did not abuse its discretion in admitting
C.A.W.’s statements to M.S. under the residual exception to the hearsay rule.
3. C.A.W.’s statements to Carter
The district court did not make findings regarding whether C.A.W.’s statements to
Carter were in response to leading questions or spontaneous or whether Carter had a
preconceived idea of what C.A.W. should say It is not clear from the record whether
Carter had a preconceived idea of what C.A.W. should say. But it is undisputed that
C.A.W. was referred to MCRC for a “sexual abuse consultation,” and the exhibits
received at the pretrial hearing demonstrate that Carter spoke with M.S. before speaking
with C.A.W., and M.S. told Carter that C.A.W. had reported that appellant put his penis
in her butt. Also, before Carter examined C.A.W., the investigating police officer spoke
with Carter and faxed her police reports that included C.A.W.’s disclosures. It is unclear
whether, before examining C.A.W., Carter received medical records from the local clinic
that reflect C.A.W.’s disclosures and preliminary medical findings.
However, even if we assume that Carter was aware of C.A.W.’s disclosures and
the police investigation, we conclude that she conducted the examination and interview
without communicating any preconceived idea to C.A.W. Carter testified that C.A.W.
was not present when Carter talked with C.A.W.’s parents. Also, the questions that
Carter asked C.A.W. were open-ended: “Well, why does your butt hurt?” “Do you have
any owies anywhere?” “How did you get an owie on your butt?” And, after C.A.W. told
Carter that appellant’s “pot pot” “hurt [her] butt” Carter asked, “What did [appellant]
do?” and “How did your butt get hurt?”
C.A.W.’s statements to Carter were not spontaneous, because they were made in
response to questions that Carter asked, and the questions were often repetitive. But the
statements were articulated in C.A.W.’s words in response to open-ended questions.
We conclude that the quality of Carter’s interview supports admission under the
residual exception: the questions, even if repetitive, were open-ended; C.A.W.’s
responses were clear and articulated in her own words; and even if Carter had an
indication of what would be disclosed, her questions and conduct did not communicate
that to C.A.W. Accordingly, the district court did not abuse its discretion in concluding
that C.A.W.’s statements to Carter were admissible under the residual exception.
Minn. R. Evid. 609(a)(1), (b), allows evidence of a felony conviction to be
admitted for impeachment purposes provided that ten or fewer years have elapsed since
the conviction and the probative value of the evidence outweighs its prejudicial effect.
See also State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (listing factors to consider
when determining whether probative value outweighs prejudice) (quoting State v. Jones,
271 N.W.2d 534, 537-38 (Minn. 1978)). The district court’s ruling on the impeachment
of a witness by prior conviction is reviewed for a clear abuse of discretion. Id. at 584.
In considering whether probative value outweighs prejudicial effect, a district
court considers the five Jones factors: “(1) the impeachment value of the prior crime;
(2) the date of the conviction and the defendant’s subsequent history; (3) the similarity of
the past crime with the charged crime; (4) the importance of defendant’s testimony; and
(5) the centrality of the credibility issue.” State v. Williams, 771 N.W.2d 514, 518 (Minn.
2009) (citing Jones, 271 N.W.2d at 538).
Appellant argues that the district court abused its discretion in allowing
impeachment with his conviction for felony domestic assault because the conviction was
for an offense that was similar to the charged crime, appellant’s testimony was important,
and credibility was not a central issue.
Similarity of Crimes
“The danger when the past crime is similar to the charged crime is that the
likelihood is increased that the jury will use the evidence substantively rather than merely
for impeachment purposes.” State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980). “[T]he
greater the similarity, the greater the reason for not permitting use of the prior crime to
impeach.” Jones, 271 N.W.2d at 538. Appellant was charged with first-degree criminal
sexual conduct, perpetrated against a three-year-old child, and his prior conviction was
for a felony domestic assault. These crimes are not similar, and this factor weighs in
favor of admission.
Importance of Appellant’s Testimony
The importance of a defendant’s version of the facts tends to support exclusion of
prior convictions as impeachment evidence. State v. Gassler, 505 N.W.2d 62, 67 (Minn.
1993). Appellant’s testimony was vitally important to the defense case: there were no
witnesses to the charged crime, and the victim was a three-year-old child who had been
deemed incompetent to testify. Also, the district court found that appellant’s testimony
. . . I waited until I heard what [the investigating
officer] had to say . . . . If I had a statement given by
[appellant] . . . but I didn’t get that, so I don’t know what
[appellant’s] story is. The only one that’s going to be able to
tell me what [appellant’s] story is is [appellant].
This factor weighs against admission.
Centrality of Credibility
The state’s case primarily included C.A.W.’s statements to three people and the
medical findings. Appellant argues that because C.A.W. did not testify at trial and
appellant’s testimony was needed to explain where he was that day and why he did not
return to the home, his credibility was not central to the outcome of the case, and the need
to use the prior conviction to impeach did not outweigh his need to testify.
appellant’s argument assumes that credibility is only central when there is conflicting
testimony about an issue. In light of all the evidence presented by the state, the fact that
C.A.W. did not testify does not mean that appellant’s credibility was not a central issue in
the case. This factor weighs in favor of admission.
Appellant did not argue that the conviction did not have impeachment value or
was untimely. Felony domestic assault is not similar to the charged crime of first-degree
criminal sexual conduct, and appellant’s credibility was a central issue in the case. While
appellant’s testimony was important, on balance, the Jones factors weighed in favor of
admission. The district court did not abuse its discretion in allowing impeachment with
the prior conviction for felony domestic assault.
Method of Impeachment
Appellant argues that it was improper to present evidence of his prior conviction
by introducing the recording of his interview with the investigating officer, in which he
admitted that he had been convicted of felony domestic assault.
Appellant contends that “[d]efense counsel had objected and requested that the
statement be redacted.” But the record reflects that although defense counsel requested
that the statement be redacted, the request was based on a mistaken belief that the district
court had previously ruled that evidence of the conviction was inadmissible. The record
does not reflect that counsel asserted any other objection to receiving the unredacted
recording of appellant’s interview with the investigating officer.
Failure to object generally constitutes waiver of the right to appeal on that basis.
State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999). However, an appellate court may
consider a waived issue if there is (1) error, (2) that is plain, and (3) the error affects the
defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). An
error is plain if the error is clear or obvious under current law. Johnson v. United States,
520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997) (discussing United States v. Olano, 507
U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993)).
An error affects the defendant’s
substantial rights “if the error was prejudicial and affected the outcome of the case.”
Griller, 583 N.W. 2d at 741. The defendant bears the “heavy burden” of demonstrating
prejudice and that the error affected the outcome of the case. Id.
Appellant has not cited any authority indicating that the method of impeachment
allowed by the district court was improper. An error cannot be deemed plain in the
absence of binding precedent. State v. Jones, 753 N.W.2d 677, 689 (Minn. 2008).
Because the error is not plain, appellant is not entitled to relief due to the method of
Also, appellant has not met his “heavy burden” of demonstrating prejudice and
that the error affected the outcome of the case. The district court properly concluded that
impeachment with the prior conviction was proper, and there was not a significant
difference between admitting evidence of the conviction during cross-examination or by
playing the recording. The manner in which the evidence was presented did not prejudice
appellant or affect the outcome of the case.
In a pro se brief, appellant argues that his conviction should be reversed because
most of the jurors were not fair and impartial and had made up their minds before the trial
started and that the pre-sentence investigation was not fairly done and the district court
punished him for exercising his right to trial. Appellant also argues that admitting
C.A.W.’s statements violated his right to confrontation, which we have already
“To prevail on a claim of bias under Minnesota law, an appellant must show that
(1) the juror alleged to be biased was subject to challenge for cause; (2) actual prejudice
resulted from the district court’s failure to dismiss; and (3) an appropriate objection was
subsequently made.” State v. Anderson, 603 N.W.2d 354, 356 (Minn. App. 1999), review
denied (Minn. Mar. 14, 2000). Appellant argues that seven jurors, L.W. (1), C.G., G.E.,
C.Y., L.W. (2), S.R., and V.G. were biased. The record reflects that the first six of these
jurors were subject to voir dire by appellant and appellant joined the state’s motion to
dismiss two jurors for cause and moved to dismiss two additional jurors for cause. The
district court granted the motions and dismissed all four of the challenged jurors.
Following the initial dismissals for cause, V.G. was subject to voir dire by appellant.
Appellant then passed the panel for cause. Because appellant did not move to dismiss for
cause any of the jurors that he now challenges, he cannot prevail on a claim of juror bias.
The investigator who prepared the presentence investigation initially determined
that appellant’s criminal-history score was five. But, before the sentencing hearing, the
investigator prepared a supplemental report that indicated that appellant’s criminalhistory score was four. Appellant did not object to the criminal-history score and does
not argue on appeal that the score is incorrect. Under the sentencing guidelines, the
presumptive sentence for first-degree criminal sexual conduct with a criminal-history
score of four is 199-281 months. Minn. Sent. Guidelines IV (2010). Appellant was
sentenced to 281 months, which is within the presumptive range.
“An appellate court will not generally review the [district] court’s exercise of its
discretion in cases where the sentence imposed is within the presumptive range.” State v.
Witucki, 420 N.W.2d 217, 223 (Minn. App. 1988) (quotation omitted), review denied
(Minn. Apr. 15, 1988).
Appellant argued below that the presentence investigation
contained unfair characterizations concerning his family, lack of remorse, and medical
condition. On appeal, appellant argues that the district court punished him for exercising
his right to trial. The record does not support his assertion, and appellant’s arguments do
not persuade us that the district court abused its discretion in sentencing appellant.