HUDSON, Justice.
Following a jury trial, appellant/cross-respondent Devon Derrick Parker was convicted of second-degree intentional murder and sentenced to 480 months in prison, which reflected an upward durational departure from the presumptive range of 312 to 439 months. On appeal, Parker challenged his conviction, arguing both that the district court erred when it denied his motion for a change of venue and that the prosecutor committed misconduct during a pretrial press conference. Parker also challenged his sentence, arguing that the district court abused its discretion by imposing an upward durational sentencing departure. The court of appeals affirmed the conviction, but reversed the sentence and remanded for resentencing. We affirm the court of appeals' decision to uphold Parker's conviction, but disagree with its conclusion that the district court abused its discretion when it imposed an upward durational departure. We therefore affirm in part and reverse in part.
On the morning of January 31, 2014, Devon Parker rang the doorbell of the back door of a residence in north Minneapolis where Thomas Sonnenberg lived with his wife. After Parker yelled "guys are chasing me" and "trying to kill me," Sonnenberg unlocked the back door and Parker entered the Sonnenbergs' home.
The Sonnenbergs, very concerned about the security of their home, had deadbolts on their doors that locked from either side, meaning that without a key, a person could neither enter nor exit the house. The day that Parker entered the Sonnenberg residence, Sonnenberg, as was his customary practice, had a loaded revolver holstered on his hip for protection. There were two other guns in the kitchen.
After Parker entered his home, Sonnenberg dialed 911. Sonnenberg explained to the 911 operator that Parker had shown up at the back door, "said that he needed help[,] and charged into" the kitchen once the door was unlocked. During the call, Sonnenberg told the operator that Parker believed people were chasing him. The operator assured Sonnenberg that "help [was] on the way" and planned to "stay on the phone" until the officers arrived. However, Parker then got on the line and said someone was trying to break into his
After the 911 call ended, Parker asked Sonnenberg to let him out of the house, which was only possible with a key. Sonnenberg's wife, out of sight in the adjoining dining room, heard Sonnenberg respond by telling Parker that the police were on their way and that he would be safe where he was. Parker became uncomfortable when he realized that Sonnenberg kept multiple guns in his house and that Sonnenberg would not allow him to leave despite his requests. Sonnenberg's wife heard Parker ask Sonnenberg for coffee and a cigarette, to which Sonnenberg did not respond, and after a period of silence, Parker began counting, "One, two, three, four ..." like he was "trying to scare" Sonnenberg. She then heard a click and, later, a gunshot. Parker claims that he heard the "click" when Sonnenberg was in control of the gun, so he disarmed Sonnenberg and directed him to sit at the kitchen table and wait for the police. According to Parker, Sonnenberg complied, but later made a sudden movement that caused Parker to fear for his life.
It is undisputed that Parker fatally shot Sonnenberg in the forehead. Parker then entered the dining room, saw Sonnenberg's wife for the first time, forced her upstairs, and ordered her to find a key so Parker could leave the house. A short time later, the police arrived and arrested Parker.
The State charged Parker with several offenses, including second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2016). That same day, on February 3, 2014, the county attorney held a press conference during which he announced the charges against Parker and answered questions from the media. In his introduction, the county attorney commented on Sonnenberg's character, referring to him as a "fine man" and "a Good Samaritan who is doing what we always hope people do ... help others." In addition to Sonnenberg's character, the county attorney mentioned Parker's prior record and sentencing history, saying, "Parker had a prior record of more minor crimes: obstruction with force; fifth-degree assault; interference with an MTC bus driver, but nothing significant. He had done time in the past, and ironically, he was supposed to appear on Friday, the day this incident occurred, in Hennepin County District Court to be sentenced on another crime." Finally, the county attorney twice alluded to Parker's constitutional right against self-incrimination. He stated, in response to a question from the press, that "Apparently Parker knows people in the neighborhood, but we don't know because the only person who really knows that is Parker, and he's not talking." Similarly, in response to a question about Parker's possible motive, the county attorney commented, "Our dilemma always is, the defendant's got his constitutional right not to talk, he's the one who can answer these questions frankly better than I can."
The county attorney's office later posted the video of the press conference to its YouTube page, referring to Sonnenberg as a "Good Samaritan" in the title of the video. See HennepinAttorney, Man Charged in Murder of Good Samaritan,
In April 2015, over a year after the charging and press conference, Parker filed a motion to change venue under Minn. R. Crim. P. 25.02, which provides that a "change of venue must be granted whenever potentially prejudicial material creates a reasonable likelihood that a fair trial cannot be had." Minn. R. Crim. P. 25.02, subd. 3. At the motion hearing, Parker described the local media reports as a "feeding frenzy" that amplified the prosecutor's comments about Sonnenberg's character by consistently using the phrase "Good Samaritan," which, according to Parker, had eliminated the possibility of a fair trial. The State urged the district court to deny Parker's motion to change venue. Citing State v. Moore, 481 N.W.2d 355, 364 (Minn. 1992) (affirming the denial of a motion to change venue where the 1-year-old news coverage was factual in content and the parties had an opportunity to question potential jurors about any exposure to publicity during voir dire), the State argued that a fair trial was possible because more than a year had passed since the media last reported on Parker's case. Parker did not directly object to the prosecutor's statements at the pretrial conference or argue that they constituted misconduct.
The district court denied Parker's motion to change venue. The court made clear that its "primary reason[s]" were both the "age of the publicity," which it concluded would "go pretty far in reducing any prejudice that resulted from it, if any did"; as well as the upcoming voir dire, which "could certainly weed out those who have been affected." The court continued, "most of the media that was cited in the motion was media that is repeated or published on the internet." The court determined that because the allegedly prejudicial articles were published on the internet, "people in every corner could have been exposed to it so I'm not sure where in Minnesota someone would not have been exposed to [it] if the material was prejudicial, where we would move venue, given the type of coverage." Parker subsequently filed a motion in limine, requesting that the State be prohibited at trial from referring to Sonnenberg as a "Good Samaritan." The State did not oppose the motion, and the district court granted Parker's request.
During voir dire, the district court recited the charges against Parker and then asked the potential jurors: "Does anybody think they know anything about this case? If so, raise your hand." No prospective jurors raised their hands. After introducing Parker and having him stand for the potential jurors, the court asked: "Does anyone believe they know [Parker] or perhaps heard of him?" Again, no prospective jurors raised their hands. Defense counsel did not ask any questions about pretrial publicity or the pretrial press conference.
Following trial, the jury found Parker guilty of second-degree intentional murder. The jury, as part of its verdict, affirmatively answered a special interrogatory
The presentence investigation determined that Parker had a criminal history score of 3, and therefore the presumptive range for his offense was 312 to 439 months. At the sentencing hearing, the State asked the court to impose a 480-month sentence, which reflected a 41-month upward durational departure, based on the jury's finding that the offense occurred inside Sonnenberg's home. See Minn. Sent. Guidelines 2.D.3.b(14) (providing that when "[t]he offense [i]s committed in a location which the victim had an expectation of privacy," a defendant's sentence may be enhanced). Parker asked the court to impose a sentence of 312 months, the bottom of the presumptive range, because the record supported three mitigating factors: (1) "[t]he victim was an aggressor," (2) "[t]he offender ... participated under circumstances of coercion or duress," and (3) "[o]ther substantial grounds exist that tend to excuse or mitigate the offender's culpability, although not amounting to a defense." Minn. Sent. Guidelines 2.D.3.a(1), (2), (5).
The court imposed a 480-month sentence. Explaining its decision, the court said: "So what I have here is, given the jury's answer to [the special interrogatory], that this occurred in Mr. Sonnenberg's own home, I can conclude that it occurred in a zone of privacy. The law does protect people's homes. It's kind of a refuge for everybody." The court rejected Parker's argument that the record contained mitigating sentencing factors, explaining that: "In response to what you say, that you participated under duress, and that the victim was an aggressor, those are arguments, arguments that the jury did not accept, so I don't either. So I don't find grounds for any downward departure or mitigating circumstances."
Parker raised three arguments on appeal. First, he argued that the district court abused its discretion when it denied his motion for a change of venue. Second, Parker argued — for the first time — that the county attorney committed misconduct during the February 2014 press conference when he commented on Sonnenberg's character, Parker's criminal history, and Parker's refusal to speak to the police. Third, Parker argued — also for the first time — that the jury's finding that the offense occurred in Sonnenberg's home failed to provide a valid basis for the upward sentencing departure.
In an unpublished opinion, the court of appeals rejected Parker's first claim — that the district court abused its discretion in denying Parker's motion for a change of venue. State v. Parker, No. A15-1417, 2016 WL 5888672, at *2 (Minn.App. 2016). The court emphasized that the news stories "mostly recounted the facts" and that any effects from the inflammatory reporting on the killing were "mitigated by the passage of time." Id. at *1. Moreover, during voir dire, "none of the prospective jurors indicated that they knew anything about the case or recognized Parker." Id. The court also rejected Parker's claim that defense counsel could not test the prospective jurors' familiarity without uttering the phrase "Good Samaritan," concluding instead that counsel "made a strategic decision not to ask such questions." Id.
The court of appeals likewise rejected Parker's second claim, which alleged prosecutorial misconduct by the county attorney. Id. at *2. Because Parker did not raise this argument before the district court, the court of appeals applied the plain-error standard of review. Id. The court, placing the burden on Parker, rather
As to Parker's third argument, which challenged the upward sentencing departure, the court of appeals reversed Parker's sentence and remanded for imposition of a 366-month sentence, the middle of the presumptive range. After describing Parker's sentence as an "upward durational departure" of "114 months,"
We first consider Parker's claim that the district court abused its discretion when it denied his motion to change venue because of the pretrial publicity surrounding the crime. Minnesota Rule of Criminal Procedure 25.02, subdivision 3, requires a district court to grant a motion for change of venue if the defendant proves a "reasonable likelihood" of an unfair trial. We review a district court's denial of a motion to change venue for an abuse of discretion. State v. Fairbanks, 842 N.W.2d 297, 302 (Minn. 2014). Although a defendant need not show "actual prejudice" to prevail on a change of venue motion at the trial court, a defendant must prove "actual prejudice" on appeal of a denial of the motion to change venue. State v. Warren, 592 N.W.2d 440, 448 n.15 (Minn. 1999). To prove "actual prejudice," an appellant must prove that the pretrial publicity "affected the minds of the specific jurors involved in the case." Id. at 447. Parker bears the burden to prove that the district court's failure to grant his motion to change venue caused him actual prejudice. Id.
The record does not reveal any evidence that the jurors were exposed to any pretrial publicity, or had knowledge of Parker or the charges he faced, which is made clear by their responses to the questions from the court during voir dire. Parker does not dispute that the jurors were being honest, much less provide any evidence to the contrary, and therefore fails to show that the publicity in any way "affected the minds of the specific jurors in the case."
Further, even if some of the jurors had been exposed to pretrial publicity, this exposure alone would be insufficient to show that the publicity "affected the minds" of those jurors. Instead, the test is whether those jurors would be unable to "set aside [their] impression[s]" to "render an impartial verdict." Id. at 447-48. In Warren, we upheld a district court's decision to deny a change of venue motion even though 14 of the 15 jurors had "read one or more newspaper articles or had seen accounts of the murders on television." Id. at 448. We held that the defendant "failed to show that pretrial publicity affected the minds of the jurors or that he
We next turn to Parker's claim that the county attorney committed misconduct during the pretrial press conference that deprived him of a fair trial. See State v. Smith, 876 N.W.2d 310, 334 (Minn. 2016) (noting that prosecutorial misconduct occurs when "the prosecutor's acts `have the effect of materially undermining the fairness of a trial'" (quoting State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007))). Parker claims that the county attorney in this case violated standards of conduct we adopted in State ex rel. Pittman v. Tahash, 284 Minn. 365, 170 N.W.2d 445, 448 (1969) (noting that we "cannot condone the actions" of a prosecutor who "ma[de] available for publication" various statements which "seriously threatened to have [an] effect upon prospective jurors residing in the community"), as well as ABA Standards of Conduct, see State v. McCray, 753 N.W.2d 746, 753 (Minn. 2008) ("We have previously looked to ABA standards as a model when evaluating claims of prosecutorial misconduct."); State v. Ramey, 721 N.W.2d 294, 301 (Minn. 2006) ("We expect that prosecutors ... are aware of our case law proscribing particular conduct as well as the standards of conduct prescribed by the ABA"); State v. Johnson, 616 N.W.2d 720, 729 (Minn. 2000) ("In evaluating claims of prosecutorial misconduct we have looked to the American Bar Association Standards for Criminal Justice as a model."). Because Parker failed to assert a prosecutorial misconduct claim in the district court, however, our review is limited.
When reviewing alleged prosecutorial misconduct for plain error, we use a modified test. State v. Wren, 738 N.W.2d 378, 393 (Minn. 2007). Under this modified test, the defendant has the burden to prove the existence of an error that is plain. Ramey, 721 N.W.2d at 302. If the defendant establishes error that is plain, the burden shifts to the State to demonstrate that the plain error did not affect the defendant's substantial rights.
Here, we are convinced that there is no "reasonable likelihood" that the county attorney's statements during the press conference, even if these comments formed the basis for the subsequent media coverage, affected Parker's substantial rights.
In sum, because the jurors stated under oath that they had no knowledge of Parker or the case and the evidence of guilt was strong, the State has established that the alleged prosecutorial misconduct did not affect Parker's substantial rights, and therefore the court of appeals properly affirmed Parker's conviction.
On cross-appeal, the State contends that the court of appeals erred in reversing the 480-month sentence imposed by the district court. The State claims the court of appeals "recast" the version of events found by the jury, thereby improperly inserting itself into a fact-finding role. Parker responds that the court of appeals properly reversed the district court's enhanced sentence, because the district court abused its discretion in applying the aggravating factor and summarily rejecting Parker's mitigating factors.
We review an upward departure from a presumptive sentence for an abuse of discretion. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If the reasons given for the departure are inadequate and there is insufficient evidence to justify the departure, the departure will be reversed. Id.
Upward departures from presumptive guideline sentences are warranted only when "substantial and compelling circumstances" of the offense render a defendant's conduct "significantly more serious" than the typical crime. Tucker v. State, 799 N.W.2d 583, 588 (Minn. 2011) (explaining the "fundamental requirement" that upward departures are permitted "only when a defendant's conduct in the
The jury in this case answered a special interrogatory, specifically finding that the crime was committed in Sonnenberg's home.
On appeal to this court, Parker acknowledges that the jury affirmatively answered a special interrogatory that the crime occurred in the Sonnenbergs' home. Nevertheless, he claims that this fact alone does not show that Parker's conduct was "significantly more serious" than the typical crime. Specifically, Parker argues, as he did to the court of appeals, that we have only affirmed the use of the zone-of-privacy factor to enhance a sentence from the presumptive range when an additional rationale has provided the "substantial and compelling circumstances" necessary to render the conduct "significantly more serious" than a typical crime. Parker further argues that "a jury's finding that a crime took place inside a home, alone, does not automatically result in a determination by the district court that the defendant violated the victim's zone of privacy."
Parker also asserts that, historically, we have only acknowledged two rationales to justify the use of the zone-of-privacy factor in enhancing a sentence: (1) a recognition that a crime committed in a victim's zone of privacy causes the victim to fear remaining in that zone of privacy after the crime occurs, State v. Van Gorden, 326 N.W.2d 633,
Parker is correct that we have previously applied the zone-of-privacy factor in cases in which the crime caused either a continuing fear of harm in the home or involved a deliberate invasion. He also correctly points out that neither of the previously cited rationales is satisfied here, because Sonnenberg — who is deceased — has no continuing fear in his home, nor was his home invaded by a deliberate trespasser. Nevertheless, nothing in the sentencing statute or the case law applying this factor suggests that one of these two rationales is required before we conclude that the zone-of-privacy factor is a sufficient basis to enhance a sentence from the presumptive guidelines range.
For the foregoing reasons, we affirm the court of appeals' decision as to the conviction but reverse it as to the sentence.
Affirmed in part and reversed in part.
MCKEIG, J., took no part in the consideration or decision of this case.