                         This opinion will be unpublished and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
                                    A15-1417

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Devon Derrick Parker,
                                     Appellant.

                                Filed October 5, 2016
                   Affirmed in part, reversed in part, and remanded
                                  Klaphake, Judge *

                            Hennepin County District Court
                              File No. 27-CR-14-2958


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, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Larkin, Presiding Judge; Smith, Tracy M., Judge; and

Klaphake, Judge.




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                          UNPUBLISHED OPINION

KLAPHAKE, Judge

       On appeal from his conviction of second-degree intentional murder, appellant

Devon Derrick Parker argues that the district court (1) erred in denying his request for a

change of venue, and (2) abused its discretion by imposing an upward durational

sentencing departure based on the fact that the crime occurred in the victim’s zone of

privacy. Because the district court acted within its discretion in denying Parker’s change-

of-venue request, we affirm his conviction; because the district court abused its discretion

by imposing an upward durational departure at sentencing, we reverse and remand for

resentencing.

                                      DECISION

I.     Change of Venue

       Parker argues that the district court erred in denying his request for a change of

venue. We review a district court’s denial of a change-of-venue request for an abuse of

discretion. State v. Blom, 682 N.W.2d 578, 596 (Minn. 2004).

       Minn. R. Crim. P. 25.02, subd. 3, provides that “[a] motion for continuance or change

of venue must be granted whenever potentially prejudicial material creates a reasonable

likelihood that a fair trial cannot be had. Actual prejudice need not be shown.” A case may

generate widespread pretrial publicity yet not require a change of venue. State v. Fratzke,

354 N.W.2d 402, 406-07 (Minn. 1984). Instead, Minnesota courts consider the publicity’s

specific nature, timing, and impact on jurors. Id. “Pretrial publicity consisting of factual

accounts of the crime is insufficient to establish that the publicity was prejudicial.” State v.


                                              2
Warren, 592 N.W.2d 440, 448 (Minn. 1999). “Moreover, the length of time between the

publicity and the trial may mitigate any potential prejudice.” Id. In Warren, the Minnesota

Supreme Court affirmed the district court’s denial of a change-of-venue request where the

defendant “identified approximately 18 pretrial newspaper articles as well as other news

reports” about the crime. Id. at 447. The supreme court also noted that all but one of the

newspaper articles were published approximately nine months before the trial. Id. at 448.

       Here, the district court denied Parker’s request and concluded that there was “not a

reasonable likelihood that the publicity of this case would prevent Parker from receiving a

fair trial.” In arriving at its conclusion, the district court considered the nature and timing

of 14 news articles, a script from a television broadcast, and a Hennepin county attorney

press conference in which the county attorney referred to the victim as a “Good Samaritan.”

The district court found as a fact that all of the pre-trial publicity occurred more than a year

before the beginning of the trial.

       Parker failed to show that any of the pre-trial publicity created a reasonable

likelihood of an unfair trial. First, the news stories that Parker submitted mostly recounted

the facts of the offense. And even assuming the news stories were inflammatory, the effects

of those were mitigated by the passage of time—approximately 14 months—between the

publicity and the beginning of Parker’s trial. See State v. Fairbanks, 842 N.W.2d 297, 303

(Minn. 2014) (concluding that 11 months between the publication of pretrial publicity and

the start of trial mitigated any prejudicial effects of 119 articles about the crime); State v.

Moore, 481 N.W.2d 355, 364 (Minn. 1992) (holding that district court acted within its

discretion in denying change-of-venue request where all but one of the news articles were


                                               3
published over a year before the trial). Second, during voir dire, none of the prospective

jurors indicated that they knew anything about the case or recognized Parker, suggesting

that the publicity that included Parker’s name and picture was not immediately impacting

their ability to be neutral in considering the facts as presented at trial. Parker argues,

however, that because the parties agreed not to use the term “Good Samaritan” during the

trial, he was unable to ask prospective jurors about their familiarity with the case. We

disagree. Defense counsel could have tested the prospective jurors’ familiarity by asking

questions concerning the facts of the case without uttering the phrase “Good Samaritan.”

Parker’s counsel made a strategic decision to not ask such questions. Consequently, the

record lacks any evidence that jurors were familiar with the case such that Parker would

not have received a fair trial.

       Parker also argues that the publicity surrounding the Hennepin county attorney’s

press conference created a reasonable likelihood that Parker would not receive a fair trial,

warranting a change of venue. Because Parker did not raise this argument to the district

court, he must show that there was plain error affecting his substantial rights. See State v.

Griller, 583 N.W.2d 736, 740 (Minn. 1998) (reviewing unobjected-to errors for plain

error). Although we have some concerns about this press conference, there is no evidence

that it impacted the fairness of Parker’s trial. As stated above, Parker’s trial counsel never

asked any of the prospective jurors about their exposure to the facts of the case. Without

record evidence that Freeman’s press conference actually prejudiced Parker’s opportunity

for a fair trial, Parker’s argument concerning the press conference is without merit.




                                              4
       Additionally, to the extent that Parker argues that the county attorney’s comments

at the press conference or in other pretrial statements constituted prosecutorial misconduct,

we also normally decline to hear such claims when they are raised for the first time on

appeal. State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006). But even if some of the

prosecutor’s comments spoke too much to Parker’s case in the media before trial because

of discussion of his character or the merits of the case, see, e.g., State ex rel. v. Tahash, 284

Minn. 365, 370, 170, N.W.2d 445, 448 (1968), Parker has failed to show that any such

prosecutorial misconduct affected his substantial rights under Griller. 583 N.W.2d 740;

see also In re Disciplinary Action against Michael, 836 N.W.2d 753, 765 (Minn. 2013)

(explaining that it is the supreme court’s “ultimate responsibility to determine what

discipline, if any, is appropriate” in attorney-misconduct cases).

       The district court acted within its discretion in denying Parker’s change-of-venue

request because Parker has not shown that he was prejudiced, and Parker has not

demonstrated prejudice to support his claim of prosecutorial misconduct due to excessive

media coverage prior to trial.

II.    Upward Durational Departure

       Parker argues that the district court abused its discretion by imposing a sentence that

constituted an upward durational departure from the presumptive sentence. The district

court imposed a 480-month sentence, which included a 366-month period imposed as the

presumptive sentence and an additional 114 months as an upward durational departure.

This court generally reviews an upward departure from a presumptive sentence for an abuse

of discretion. State v. Jackson, 749 N.W.2d 353, 356-57 (Minn. 2008). The question of


                                               5
whether the district court’s reason for departure is proper is a legal issue that we review de

novo. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010), review denied (Minn.

July 20, 2010). If the reason given by the district court justifies the departure, the departure

will be allowed. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If the reason given

is improper or inadequate and there is insufficient evidence to justify the departure, the

departure will be reversed. Jackson, 749 N.W.2d at 357.

       The sentencing guidelines contain a nonexclusive list of aggravating factors that

may justify an upward durational departure. Minn. Sent. Guidelines 2.D.2.b (2014). One

reason for imposing an upward departure is that the defendant committed the crime within

a victim’s zone of privacy. State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983). The zone

of privacy often includes a victim’s home, particularly when the offender enters the home

by force. State v. Thao, 649 N.W.2d 414, 421 (Minn. 2002); State v. Winchell, 363 N.W.2d

747, 750 (Minn. 1985). But the zone of privacy does have limits, and the supreme court

has declined to extend the zone of privacy to other places of “tranquility,” such as parks.

Thao, 649 N.W.2d at 421. 1

       The district court identified the sole factor of invasion of the victim’s zone of

privacy in granting the upward durational departure here. But the record included

uncontradicted testimony that the armed victim, T.S., permitted Parker to enter his kitchen

after Parker knocked on the door for help, locked the door with a key after Parker entered,


1
 Parker argues that the zone-of-privacy factor does not apply in homicide cases or in cases
when the defendant does not trespass in the victim’s home. In State v. Bock, 490 N.W.2d
116, 121 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992), we expressly rejected
this argument.

                                               6
ordered him to sit in a room that contained other loaded weapons, and refused to let him

leave the home despite Parker’s requests to do so. The district court did not consider how

these facts impacted application of the zone-of-privacy factor. “The core issue for the

district court in determining whether to depart durationally from the guidelines is whether

the defendant’s conduct was significantly more or less serious than that typically involved

in the commission of the crime.” Thao, 649 N.W.2d at 421. See Ture v. State, 353 N.W.2d

518, 525 (Minn. 1984) (stating that justification for an upward sentencing departure is

dependent upon “whether [the] defendant committed the crime in question . . . in a

particularly serious way”). The zone-of-privacy factor is less persuasive when the conduct

that precedes the crime includes that the defendant is held in the home against his will by

the victim. See Minn. Sent. Guidelines 2.D (requiring “substantial and compelling”

circumstances to justify a sentencing departure).

       Further, the district court must balance aggravating factors against any mitigating

factors in determining whether to depart, and the failure to do so is error. State v. Curtiss,

353 N.W.2d 262, 264 (Minn. 1984). The sentencing guidelines contain a nonexclusive list

of mitigating factors that include aggression of the victim, duress of the offender, and

“substantial grounds” that otherwise excuse or mitigate the offender’s conduct, although

falling short of a defense. Minn. Sent. Guidelines 2.D.3 (2014); see State v. Larson, 473

N.W.2d 907, 910 (Minn. App. 1991) (“The sentencing guidelines acknowledge victim

aggression and duress as valid mitigating factors.”). A mitigating factor should not be

“ignored” in considering whether a “defendant’s conduct [is] particularly deserving of

punishment.” State v. Wall, 343 N.W.2d 22, 25-6 (Minn. 1984) (modifying upward


                                              7
durational departure to a presumptive sentence when the district court considered

aggravating factors but failed to consider the mitigating factor of a defendant’s mental

illness). Even one mitigating factor may support a downward durational departure. State

v. Solberg, 882 N.W.2d 618, 624-25 (Minn. 2016).

       The district court summarily rejected Parker’s mitigation argument, including that

the offense occurred while Parker was under duress. The district court said that this

argument, and the argument that the victim was an aggressor, were “arguments that the

jury did not accept, so I don’t either.” (S.T. at 63) This summary rejection of the mitigation

argument was improper. First, the guilty verdict does not signify that the jury concluded

there were no mitigating facts surrounding the offense; it signifies only that Parker was

culpable for the crime and that he did not have a defense that excused his culpability.

Second, the trial record includes evidence of mitigation which the district court ignored.

The record establishes that T.S.’s home was very well protected: the home had bolt locks

on the doors that required a key for entry and egress, and the home contained what can

only be described as an arsenal of over 50 weapons placed about the home. According to

T.S.’s wife E.S., T.S. carried a gun on him “at all times” and did not leave the home very

often because he was afraid to do so, and it was “disconcerting” to her that there were guns

located throughout the house. On the late morning of the murder, T.S. was wearing his

revolver holstered on his hip. Parker knocked on T.S.’s kitchen door claiming he was in

danger, and entered the home with T.S.’s permission. A 911 operator was called to report

that Parker was in danger.




                                              8
       According to the trial testimony of both Parker and E.S., who was located in the

dining room and could only hear what occurred in the kitchen, T.S. relocked the door

immediately after Parker entered the home. According to both Parker and E.S., T.S.

ordered Parker to sit and refused to let him out of the house even when he asked to leave.

E.S. testified that Parker asked to leave once and “may have” asked to leave a second time;

Parker testified that he twice asked to leave. E.S. testified that shortly after the 911 call

she heard a click which she knew was the cocking of a revolver, and fifteen seconds later

she heard a gunshot. Parker testified that T.S. had pointed his gun at him, and he thought

that T.S. was going to shoot him. This was the testimony regarding the circumstances that

preceded the struggle during which Parker overpowered T.S. and shot him with his own

gun.

       Under the unique circumstances of this case, the failure of the district court to

consider all of the circumstances that affected application of the zone-of-privacy factor,

and the failure to consider any mitigating circumstances present in the record, amounted to

an abuse of discretion. Jackson, 749 N.W.2d at 357; Wall, 343 N.W.2d at 25-6. We

therefore reverse the aggravated portion of Parker’s sentence and remand for imposition of

the presumptive 366-month sentence. See id., 749 N.W.2d at 357 (requiring reversal and

remand for imposition of the presumptive sentence when the given departure reasons are

“improper or inadequate”).

       Affirmed in part, reversed in part, and remanded.




                                             9
