State v. Danberry

1

State of Minnesota, Respondent, v. Chad Edward Danberry, Appellant.

No. A22-0856

Court of Appeals of Minnesota

September 11, 2023

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Blue Earth County District Court File No. 07-CR-18-886.

Keith Ellison, Attorney General, Ed Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and Patrick McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge Segal, Chief Judge; and Kirk, Judge. ^[*]

OPINION

SMITH, TRACY M., Judge.

Appellant Chad Edward Danberry appeals from judgments of conviction, following his third jury trial, for five counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. Danberry argues that (1) he is entitled to a new trial because the district court judge was disqualified from presiding after assisting the state during the second trial, (2) his conviction for count 4, second-degree criminal sexual conduct, must be reversed because it violates constitutional and statutory double jeopardy, (3) he is entitled to reversal and remand for the imposition of a single guidelines sentence because the district court erred by imposing multiple sentences for offenses that were part of the same behavioral incident, (4) during the third trial, Danberry was improperly tried for two new counts, requiring reversal of those convictions, (5) his criminal-history score is inaccurate, making his sentence illegal, and (6) his 792-month sentence is excessive.

We conclude that Danberry's count 4 conviction violated double jeopardy, so we reverse his conviction on that count. We also conclude that Danberry's criminal-history score must be recalculated, so we reverse and remand for the district court to do so and therefore decline to address Danberry's excessive-sentence argument. As for the remaining issues, we discern no error and affirm.

FACTS

In 2018, 11-year-old I.A. reported that Danberry had sexually abused her multiple times over several years. Danberry had been I.A.'s mother's boyfriend for approximately eight years and is the biological father of I.A.'s younger brother. I.A. and Danberry lived together from approximately 2010 until approximately 2016, while I.A. was in kindergarten through sixth grade. I.A. saw Danberry as a father figure.

Respondent State of Minnesota initially charged Danberry with six counts of first-degree criminal sexual conduct, six counts of second-degree criminal sexual conduct, criminal sexual predatory conduct, and threats of violence. The state amended the complaint twice, resulting in five counts of first-degree criminal sexual conduct and seven counts of second-degree criminal sexual conduct. The day before the first trial, the district court judge directed the state to specify the acts that supported each count within the complaint. Danberry made a motion to sever the charges, which the state opposed. The district court denied the motion to sever and instead joined nine of the charges for trial, resulting in five counts of first-degree criminal sexual conduct and four counts of second-degree criminal sexual conduct.

First Trial

During the first trial, the parties struggled to match testimony about specific alleged incidents of sexual abuse with the counts. The district court decided to provide the jury with instructions that linked some allegations with each count. The jury returned guilty verdicts on all nine charged offenses. The district court imposed guideline sentences for four of the first-degree criminal-sexual-conduct convictions based on a criminal-history score of six.

Direct Appeal and Remand for New Trial

Danberry appealed, arguing insufficient evidence on count 4-first-degree criminal sexual conduct^[1]-and that he was entitled to a new trial because the district court denied his motion to strike a biased juror. State v. Danberry, No. A19-1676, 2020 WL 6846376, at *2-5 (Minn.App. Nov. 23, 2020). We agreed that "the district court abused its discretion by allowing [a biased] juror to sit in Danberry's trial." Id. at *5. Because this constituted structural error, we reversed Danberry's convictions and remanded for a new trial. Id. We did not address the sufficiency of the evidence for count 4. Id.

Second Trial

Throughout the second trial, the parties worked to connect allegations from testimony to the charged counts, while references to the count numbers caused confusion. At one point, the district court directed the state to use more "leading questions" to "properly cue the defense in to what count we're talking about." I.A.'s testimony during the second trial included information about incidents of abuse that differed from the first trial. The jury acquitted Danberry on two counts and failed to reach a unanimous verdict on the remaining counts.

Third Trial

Before the third trial, the state amended the complaint to include nine counts:

Count 1: first-degree criminal sexual conduct under Minnesota Statutes section 609.342, subdivision 1(a) (2010)

Count 2: first-degree criminal sexual conduct under Minnesota Statutes section 609.342, subdivision 1(a) (2012)

Count 3: first-degree criminal sexual conduct under Minnesota Statutes section 609.342, subdivision 1(a) (2012)

Count 4: second-degree criminal sexual conduct under Minnesota Statutes section 609.343, subdivision 1(a) (2012)

Count 5: first-degree criminal sexual conduct (multiple acts) under Minnesota Statutes section 609.342, subdivision 1(h)(iii) (2010)

Count 6: second-degree criminal sexual conduct under Minnesota Statutes section 609.343, subdivision 1(a) (2012)

Count 7: second-degree criminal sexual conduct (multiple acts) under Minnesota Statutes section 609.343, subdivision 1(h)(iii) (2010)

Count 13: first-degree criminal sexual conduct under Minnesota Statutes section 609.342, subdivision 1(a) (2010)

Count 14: first-degree criminal sexual conduct under Minnesota Statutes section 609.342, subdivision 1(a) (2012)

The jury found Danberry guilty of all nine counts. The district court left counts 5 and 7 unadjudicated and sentenced Danberry to consecutive prison terms for counts 1, 2, 3, and 13, resulting in a 792-month sentence.

Danberry appeals.

DECISION

Danberry argues that (1) he is entitled to a new trial because the district court judge was partial, (2) his conviction for count 4 must be reversed because it violated double jeopardy (3) the district court erred in imposing multiple sentences for offenses that were part of the same behavioral incident, (4) during the third trial, Danberry was improperly tried for two new counts, (5) his criminal-history score is inaccurate, and (6) his 792-month sentence is excessive. We address each argument in turn.

I. The district court judge was not partial.

Danberry asserts that the judge who presided over all three trials demonstrated "actual partiality or at least a reasonable question as to whether he was partial" during the second trial following the direct examination of I.A. Danberry challenges the conduct of the judge on constitutional due process grounds and based on the Minnesota Rules of Criminal Procedure and Code of Judicial Conduct. He contends that the judge "abandoned his neutral role and became an advocate for the state" and requests that we remand for a new trial.

Both the United States and Minnesota Constitutions guarantee criminal defendants the right to be tried by an impartial jury. U.S. Const. amend. VI; Minn. Const. art. I, § 6. Although the right to a trial before an impartial judge is not specifically enumerated in the United States or Minnesota Constitution, this principle has long been recognized as a component of due process. See Rose v. Clark, 478 U.S. 570, 577 (1986); see also Greer v. State, 673 N.W.2d 151, 155 (Minn. 2004) ("[I]mpartiality is the very foundation of the American judicial system."). Therefore, a judge is prohibited from presiding if the judge shows "actual bias" against the defendant. State v. Dorsey, 701 N.W.2d 238, 252 (Minn. 2005). But showing "actual bias" is not required to disqualify a judge from presiding. See Minn. R. Crim. P. 26.03, subd. 14(3). Under the rules of criminal procedure, "[a] judge must not preside at a trial or other proceeding if disqualified under the Code of Judicial Conduct." Id. A judge is disqualified under the code of judicial conduct "in any proceeding in which the judge's impartiality might reasonably be questioned." Minn. Code Jud. Conduct Rule 2.11(A). We review whether a judge was disqualified from presiding over a proceeding de novo. Dorsey, 701 N.W.2d at 249; State v. Malone, 963 N.W.2d 453, 464 (Minn. 2021).

We first describe the challenged conduct, which occurred during a bench conference in the second of Danberry's three jury trials. As background, at both the first and the second trials, the state charged Danberry with two counts of criminal sexual conduct causing "personal injury," in violation of Minnesota Statutes section 609.343, subdivision 1(e)(i) (2012), based on two alleged incidents involving a rope hanging from the rafters of the basement in the home that Danberry shared with I.A., I.A.'s mother, and I.A.'s siblings.

During the second trial, I.A. testified about the two alleged incidents involving a rope. In her testimony about the second incident involving a rope at the second trial, I.A. described sexual contact that Danberry committed when the rope was wrapped around her foot while she practiced for competitive dance. She testified that Danberry kicked their dog to force the dog...