State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1101

State of Minnesota,
Respondent,

vs.

Daryl Robert Lavan,
Appellant.

Filed August 14, 2017
Affirmed
Bjorkman, Judge

Mower County District Court
File No. 50-CR-15-858

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

Kristen Nelson, Mower County Attorney, Holli J. Mayer, Assistant County Attorney,
Austin, Minnesota (for respondent)

Daniel P. Repka, Repka Law, LLC, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Hooten, Judge; and
Toussaint, Judge.

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

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his conviction of domestic assault and the denial of his petition
for postconviction relief, arguing that he did not validly waive his right to a jury trial and
that the evidence was insufficient. We affirm.
FACTS
On April 19, 2015, R.K. heard her sister, S.K., and appellant Daryl Robert Lavan
screaming at one another. After observing S.K. crying, R.K. called 911. S.K. told the 911
operator that Lavan struck her nose and threatened her. S.K. told a responding Minnesota
State Trooper that she and Lavan got into an argument because he would not give her the
keys to their van. The a rgument led to a physical altercation during which Lavan hit her
in the nose and threatened her. The trooper observed S.K. was visibly shaken and crying,
and that her nose was red and slightly swollen.
Respondent State of Minnesota charged Lavan with domestic assault. At a July 8,
2015 pretrial hearing, Lavan waived his right to a jury trial. During the April 6, 2016 court
trial, S.K. recanted her allegations against Lavan. She testified that on the morning of the
incident she was agitated and grumpy because she had been out drinking the night before
and was “between medications” for her borderline personality disorder. Later that day, she
started a fight with Lavan because he would not give her the keys to the van . During the
incident, he accidently “ended up bonking” her nose while attempting to calm her down.
Testifying in his own defense , Lavan similarly denied hitting or threatening S.K. , stating
that any physical contact he made with S.K. was accidental or done in self-defense. When

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asked if he bumped S.K.’s nose, he said it was possible but explained S.K. “has a red nose
most of the time.”
The district court found Lavan guilty, imposed a stayed 90-day sentence, and placed
him on probation for two years. Lavan appealed . This court stayed the appeal to allow
him to pursue postconviction relief. In his postconviction petition, Lavan argued that he is
entitled to a new trial because he did not validly waive his right to a jury trial. The district
court denied the petition without an evidentiary hearing. This court subsequently dissolved
the stay.
D E C I S I O N
I. Lavan validly waived his right to a jury trial.
Under both the United States and Minnesota Constitutions, a defendant is entitled
to a jury trial. U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI; Minn. Const. art. 1,
§§ 4, 6. A defendant may waive this right, “but the waiver must be knowing, intelligent,
and voluntary.” State v. Little, 851 N.W.2d 878, 882 (Minn. 2014). “Whether a waiver of
a constitutional right was knowing, intelligent, and voluntary depends on the facts and
circumstances of the case, including the background, experience, and conduct of the
accused.” Id. The defendant must make the waiver either in writing or in open court.
Minn. R. Crim. P. 26.01, subd. 1(2)(a). We review the validity of a jury -trial waiver
de novo. State v. Kuhlmann , 806 N.W.2d 844, 848 -49 (Minn. 201 1). The focus of our
inquiry is whether the defendant understood the basic elements of a jury trial. State v. Ross,
472 N.W.2d 651, 654 (Minn. 1991).

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Lavan argues that his waiver of his jury -trial right is not valid because his attorney
did not adequ ately explain the constitutional protections of a jury trial. At the pretrial
hearing, Lavan’s counsel indicated that Lavan wished to waive his right to a jury trial. The
following exchange then occurred:
THE COURT: Mr. Lavan, have you had a sufficient amount of
time to meet with [your attorney] and discuss your legal rights
in this matter?
THE DEFENDANT: Yes, I have.
THE COURT: One of the legal rights that you have is the right
to a trial. That trial can either be to the Court or to a jury. Your
attorney has indicated that you wish to have the trial to the
Court; is that correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And therefore, you will be waiving your right
to a jury trial.
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand that, sir?
THE DEFENDANT: Yes.
THE COURT: Any questions you have about that?
THE DEFENDANT: No.

Citing In re Welfare of M.E.M., 674 N.W.2d 208 (Minn. App. 2004), Lavan argues
that this exchange was insufficient to establish that he knowingly, intell igently, and
voluntarily waived his right to a jury trial. 1 In M.E.M., this court concluded the juvenile
defendant’s waiver of his right to a jury trial was valid, observing that defense counsel and
the district court “inquired into whether appellant understood every aspect of his right to a
jury trial.” 674 N.W.2d at 214. Lavan argues that his waiver “falls significantly short of
the standard established in [ M.E.M.].” We are not persuaded. M.E.M. did not hold that

1 Although Lavan cites all three requirements for a valid jury -trial waiver, he does not
contend that his waiver was coerced.

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such an inquiry is necessary to establish a valid waiver. To the contrary, there are no
specific questions that a district court must ask to obtain a valid wai ver. See Ross, 472
N.W.2d at 654 (stating the “nature and extent of the inquiry may vary with the
circumstances of a particular case”). And Lavan cites no authority for his contention that
a district court must specifically advise a defendant about the number of jurors who would
decide the case and the requirement of a unanimous verdict. Indeed, our supreme court in
Ross characterized such a colloquy as “helpful guidelines,” but not mandatory. Id. We are
convinced that the district court took adequate steps to ensure that Lavan’s waiver (1) was
valid by confirming that Lavan was satisfied that he had enough time to consult with
counsel, (2) understood that he was waiving his right to a jury trial, and (3) did not have
any questions about the waiver.
The record developed during the postconviction proceeding lends further support to
our conclusion that Lavan validly waived his right to a jury trial. In an affidavit the state
submitted in response to the petition, Lavan’s trial counsel indicates he discussed with
Lavan the features and advantages of a jury trial at length before Lavan decided to waive
his right to a jury. During his initial contact with Lavan, counsel explained that Lavan had
the right to a jury trial if the matter remained unresolved on the date of the pretrial hearing.
On the morning of the pretrial hearing, Lavan’s counsel explained the jury would consist
of six juror s, they c ould question the potential jurors and eliminate those they felt were
biased or could not be impartial, a nd unlike a court trial to a single judge, all six jurors
would have to believe he was guilty beyond a reasonable doubt. On this record, we

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conclude that Lavan’s waiver of his right to a jury trial is valid. The district court did not
abuse its discretion in denying Lavan’s petition for postconviction relief.
II. Sufficient evidence supports Lavan’s conviction.
In reviewing a sufficiency -of-the-evidence challenge, we review the record “to
determine whether the evidence, when viewed in a light most favorable to the conviction,
was sufficient to permit the [fact-finder] to reach the verdict which [it] did.” State v. Webb,
440 N.W.2d 426, 430 (Minn. 1989). We assume “that the [fact-finder] believed all of the
state’s witnesses and disbelieved any evidence to the contrary.” State v. Chambers , 589
N.W.2d 466, 477 (Minn. 1999). And we use the same standard of review in court trials
and jury trials when evaluating the s ufficiency of the evidence. State v. Palmer , 803
N.W.2d 727, 733 (Minn. 2011).
An individual is guilty of domestic assault when he “intentionally inflicts or
attempts to inflict bodily harm” upon a family or household member. Minn. Stat.
§ 609.2242, subd. 1(2) (2014). Lavan argues that the evidence is insufficient because both
he and S.K. testified that he did not intend to hit her, but rather accidentally made contact
with her nose while attempting to calm her down. But the district court expressly fou nd
this testimony was not credible. 2 The district court rejected Lavan’s testimony as a “self-
serving fabrication” and “at odds with common sense.” And after determining that S.K.’s
trial testimony was not credible, the district court found that her init ial statement to the

2 Lavan initially appealed the district court’s failure to make written findings as required
by Minn. R. Crim. P. 26.01, subd. 2(c). The district court subsequently issued written
findings, and Lavan withdrew the issue at oral argument.

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trooper, in which she reported that Lavan threatened her, hit her, and tackled her to the
ground, was credible. We defer to such credibility determinations. State v. Kramer, 668
N.W.2d 32, 38 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).
Based on our review of this record, we conclude that sufficient evidence supports
Lavan’s conviction. S.K.’s statement to the trooper provides ample evidence that Lavan
inflicted or attempted to inflict bodily harm upon her. And the testimony was corroborated
by the trooper’s and other law enforcement officers’ observations and photographs of
S.K.’s nose. R.K.’s trial testimony provides additional support. R.K. testified that she
called 911 after she observed S.K. crying and S.K. told her Lavan “took a hammer . . . or
a crowbar” and “raised it at her.” Accordingly, we affirm Lavan’s conviction.3
Affirmed.

3 Lavan also contends that any use of force was authorized under Minn. Stat. § 609.06,
subd. 1(9) (2014), which permits an individual to use reasonable force to restrain a person
with a mental illness from harming herself or others. We do not consider this argum ent
because Lavan did not raise it in the district court. See Roby v. State, 547 N.W.2d 354, 357
(Minn. 1996) (stating appellate courts generally do not decide issues not raised before the
district court).