                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1779

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                              George Cornelius Watkins,
                                     Appellant.

                               Filed November 9, 2015
                                      Affirmed
                                Stoneburner, Judge

                           Hennepin County District Court
                              File No. 27-CR-14-6338


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and

Stoneburner, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

STONEBURNER, Judge

       Appellant challenges his convictions of third-degree assault and kidnapping,

asserting that the district court abused its discretion by admitting relationship evidence

that was more prejudicial than probative. Appellant also challenges the district court’s

reliance on the zone-of-privacy aggravating factor to impose an upward sentencing

departure on the kidnapping conviction, arguing that the kidnapping did not occur in the

victim’s home. We affirm.

                                         FACTS

       Appellant George Cornelius Watkins and B.T. were involved in an off-and-on

relationship for about eight years, during which Watkins was convicted of three separate

incidents of domestic assault, all of which occurred in 2010. In March 2014, Watkins

and B.T. exchanged messages about meeting at a bar, but when Watkins became angry

during the exchanges, B.T. decided not to meet him as planned. B.T. nonetheless went to

the agreed-on bar with friends, but left when she learned that Watkins was there.

       Watkins was outside the bar in a truck with three other people when B.T. left.

Watkins told her to get into the truck; he got out of the truck and forced her into the

passenger seat. Watkins got into the driver’s seat, punched B.T. in the head, asked her

why she was not answering her phone, and took her phone away. Watkins drove away,

swerving as he continued to punch B.T. He then stopped, sat across B.T.’s lap and

continued to hit her in the face 10-20 times. B.T.’s attempts to hit back only made him

angrier.


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       Watkins began driving again but stopped to let the other passengers out. B.T. told

Watkins to take her home and that she would not call the police. He then drove her to her

home. According to B.T., Watkins then appeared scared because she appeared to be

unconscious. He shook her and told her to wake up and she told him that she needed help

because her eyes were swollen shut. Watkins helped her into the house, but followed her

into the bathroom, closed the door and continued to fight. B.T., believing it would stop

the assault, told Watkins that they should go to sleep. He eventually agreed and B.T.

went into the bedroom and “passed out.”

       When B.T. woke up, she went into the bathroom and saw injuries to her face,

including damage from Watkins’s rings. B.T. thought he had been trying to kill her.

Watkins was asleep on the bed fully dressed. B.T., who does not have a landline

telephone, took her cell phone out of Watkins’s pocket, went into the bathroom and tried

to call her mother and her cousin. Her cousin called the police.

       The police arrived and observed that B.T. had severe head trauma with both eyes

swollen shut and cuts on her face. Watkins was discovered lying under a blanket in a

back bedroom and was arrested.

       B.T. had a broken nose, fractured bones in her eye, and a concussion.

Photographs documented her injuries. In a statement, she admitted that she had been

drinking and that she had struck Watkins during the evening. And she admitted that she

sent derogatory text messages after the assault to another woman with whom Watkins

was involved. B.T.’s statement to the police was consistent with her later trial testimony.




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       Watkins was charged with third-degree assault, in violation of Minn. Stat.

§ 609.223, subd. 1 (2012), and two counts of kidnapping, in violation of Minn. Stat.

§ 609.25, subd. 1(2), (3) (2012).

       On the first day of trial, the district court granted Watkins’s request to discharge

his attorney and to proceed pro se. On the second day of trial, the district court, over

objection, granted the state’s motion to admit as relationship evidence Watkins’s three

prior domestic assault convictions.    B.T. testified that in the first incident Watkins

grabbed her by the neck and dragged her into her house when she was trying to leave; in

the next incident he dragged and punched her; and in the third incident he punched her in

the face and shoved her head into a wall. The district court instructed the jury on the

limited use of this evidence.

       S.R., the other woman with whom Watkins had a relationship, testified at trial that

she had told B.T. that Watkins no longer wanted to be with B.T. and B.T. had threatened

to call Watkins’s probation officer and have Watkins sent back to jail. A defense

investigator testified that after the incident with B.T., Watkins had a lump on his head,

bite marks, and scratches. The district court did not give a self-defense instruction,

having informed Watkins that it did not find enough evidence to support such an

instruction.   In closing, Watkins questioned B.T.’s credibility, arguing that he was not

the aggressor, evidenced by scratches on his back, and referring to B.T.’s anger about his

other relationship.

       The jury found Watkins guilty of third-degree assault and one count of kidnapping

to facilitate a felony or flight, but not guilty of kidnapping to commit great bodily harm


                                            4
or terrorize. In special verdict forms, the jury found that B.T. was not released to a safe

place and that she suffered great bodily harm during the course of the kidnapping.

       Relating to aggravating sentencing factors, the district court informed the jury that

it was required to determine whether Watkins’s actions occurred in a location where B.T.

had a reasonable expectation of privacy. The district court instructed the jury that if

Watkins’s action occurred in B.T.’s home and if he was not a welcome guest in the home,

his criminal action occurred in a place where B.T. had a reasonable expectation of

privacy. But if the criminal actions did not occur in her home or he was a welcome guest

in the home, the acts did not occur in a place where she had a reasonable expectation of

privacy. The district court instructed the jury that the state had the burden to prove

beyond a reasonable doubt the existence of any aggravating factor.

       In the aggravated-sentencing proceeding, the prosecutor argued that the evidence

showed that (1) as to the assault charge, Watkins continued to assault B.T. in the

bathroom in her home; and (2) as to the kidnapping charge, Watkins confined B.T. to her

home while he continued to assault her and cause her fear, so that she believed she could

not get away and she was not able to escape confinement until the police arrived.

Watkins argued that B.T.’s home was not within a zone of privacy because he was

engaged to her and it was his home as well, although his belongings were not there. The

jury found that the kidnapping offense occurred in B.T.’s zone of privacy but found that

the assault did not occur in B.T.’s zone of privacy.

       The district court sentenced Watkins to 205 months in prison, an upward departure

from the presumptive sentence of 95-132 months, on the kidnapping conviction, and


                                             5
imposed a concurrent, presumptive sentence of 39 months on the assault conviction. This

appeal followed.

                                      DECISION

       1.     Admission of relationship evidence

       Watkins first argues that the prejudicial effect of the admission of prior domestic

assaults far outweighed any probative value such that Watkins is entitled to a new trial.

       This court generally reviews a challenge to the admission of relationship evidence

for an abuse of discretion. State v. Lindsey, 755 N.W.2d 752, 755 (Minn. App. 2008),

review denied (Minn. Oct. 29, 2008). A district court may admit evidence of “domestic

conduct,” including domestic abuse, by a defendant against an alleged victim of domestic

conduct unless the probative value of the evidence is “substantially outweighed by the

danger of unfair prejudice” to the defendant, “or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence.” Minn. Stat. § 634.20 (Supp.

2013). This evidence is referred to as “relationship evidence.” State v. Matthews, 779

N.W.2d 543, 549 (Minn. 2010). “Relationship evidence is relevant because it illuminates

the history of the relationship between the victim and defendant and may also help prove

motive or assist the jury in assessing witness credibility.” Id. (quotation omitted).

       Watkins asserts that because B.T. was not reluctant to testify and fully

remembered and recounted her version of events, including her on-again-off-again

relationship with Watkins, evidence of the prior domestic assaults had no probative value

and was merely evidence of bad character. But a district court need not engage in a

separate analysis of the state’s “need” for relationship evidence; this factor is considered


                                              6
as part of an assessment of whether the probative value of the evidence outweighs its

prejudicial effect. State v. Bell, 719 N.W.2d 635, 639 (Minn. 2006).

       “When balancing the probative value against the potential prejudice, unfair

prejudice is not merely damaging evidence, even severely damaging evidence; rather,

unfair prejudice is evidence that persuades by illegitimate means, giving one party an

unfair advantage.” Id. at 641 (quotation omitted). “Evidence that helps to establish the

relationship between the victim and the defendant or which places the event in context

bolsters its probative value.” State v. Kennedy, 585 N.W.2d 385, 392 (Minn. 1998). We

have held that acts of prior domestic violence are probative of relationship history

between a defendant and a victim and provide context in which to examine a victim’s

credibility. State v. Meyer, 749 N.W.2d 844, 849-50 (Minn. App. 2008). Because

Watkins challenged B.T.’s credibility at trial, suggesting that she may have fabricated her

accusations out of jealousy, we conclude that the prejudicial effect of the testimony did

not outweigh its probative value, and the district court did not abuse its discretion by

admitting relationship evidence in this case.

       2.     Aggravated sentencing factor

       Watkins argues that the district court committed reversible error by relying on the

“zone-of-privacy” aggravating factor to enhance his sentence for kidnapping because the

kidnapping occurred at the bar and in the truck, which are not zones of privacy for B.T.

       This court generally reviews a district court’s decision to depart from the

sentencing guidelines for an abuse of discretion. Taylor v. State, 670 N.W.2d 584, 588

(Minn. 2003). A district court may depart from the guidelines “only when substantial and


                                                7
compelling circumstances are present.”     Id. at 587.    “Substantial and compelling

circumstances are present when the defendant’s conduct in the offense of conviction was

significantly more or less serious than that typically involved in the commission of the

crime in question.” State v. Abrahamson, 758 N.W.2d 332, 337-38 (Minn. App. 2008)

(quotation omitted), review denied (Minn. Mar. 31, 2009). A single aggravating factor

may support an upward sentencing departure. State v. O’Brien, 369 N.W.2d 525, 527

(Minn. 1985).

      Commission of an offense “in a location in which the victim had an expectation of

privacy” is included in the Minnesota Sentencing Guidelines’ nonexclusive list of

aggravating factors that may support an upward sentencing departure.       Minn. Sent.

Guidelines 2.D.3.b, 2.D.3.b(14) (2013). The “zone of privacy” is generally limited to a

victim’s home and curtilage. State v. Thao, 649 N.W.2d 414, 422 (Minn. 2002).

      Here, the jury found that the kidnapping was committed within B.T.’s zone of

privacy. We review a sentencing jury’s findings for sufficiency of the evidence. See

State v. Rodriguez, 738 N.W.2d 422, 433 (Minn. App. 2007) (concluding there was

sufficient evidence to prove aggravating factors), aff’d, 754 N.W.2d 672 (Minn. 2008).

We conduct “a painstaking analysis of the record to determine whether the evidence,

when viewed in a light most favorable to the conviction, was sufficient to permit the

jurors to reach their verdict.”   State v. Clark, 755 N.W.2d 241, 267 (Minn. 2008)

(quotation omitted).

      To convict Watkins of kidnapping under Minn. Stat. § 609.25, subd. 1(2), the state

was required to prove beyond a reasonable doubt that Watkins confined B.T. or removed


                                           8
her from one place to another, in order to facilitate the commission of a felony or flight.

Watkins does not challenge the sufficiency of the evidence supporting the kidnapping

conviction, but argues that there is no evidence that the kidnapping occurred within

B.T.’s home. B.T. testified that they were in the home less than five minutes before they

went to sleep, and Watkins argues that the actions that occurred in B.T.’s home during

that time were not criminally significant to the commission of a separate crime and

cannot constitute kidnapping. See State v. Smith, 669 N.W.2d 19, 32 (Minn. 2003)

(holding, in relevant part, that “where the confinement or removal of the victim is

completely incidental to the perpetration of a separate felony, it does not constitute

kidnapping”), overruled on other grounds by State v. Leake, 699 N.W.2d 312, 323 (Minn.

2005). But Smith, unlike this case, dealt with the sufficiency of the evidence to support a

conviction of kidnapping when a door was “momentarily” blocked during the

commission of a murder. See id. at 32-33.

       The state argues that Watkins’s “claim is based on an artificial divide in the

continuing course of conduct underlying his convictions,” and that the kidnapping did not

end when Watkins brought B.T. to her home.           The state asserts that the evidence

established that B.T. only asked to be taken home because she thought the attack would

stop there and that Watkins continued to confine B.T. in her home, where he continued to

follow her and assault her. B.T. was not free to leave; Watkins kept her cell phone so she

could not call for help, and even when she retrieved her phone, B.T. was afraid to call 9ll

directly because she feared being caught by Watkins. The state argues that a rational jury

found that B.T. continued to be confined in her home, and this continued confinement in


                                            9
B.T.’s home was not “momentary” or “merely incidental” to the continued assault. We

agree that the state established beyond a reasonable doubt that Watkins continued to

confine B.T. in her home and that the evidence is sufficient to support the jury’s finding

that the kidnapping continued in B.T.’s zone of privacy, supporting the upward

sentencing departure imposed by the district court.

      Affirmed.




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