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This opinion will be unpublished and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
A16-1997

State of Minnesota,
Respondent,

vs.

Sandra Grazzini-Rucki,
Appellant.

Filed November 6, 2017
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Dakota County District Court
File No. 19HA-CR-15-2669

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

James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Sandra Grazzini-R ucki was convicted of two counts of depriving another
of custodial or parental rights. She seeks reversal of her convictions, reversal of her

2
sentence, and dismissal of the charges against her or a new trial. In support of these
requests, Grazzini-Rucki raises a number of i ssues, including that (1) she was denied her
Sixth Amendment right to effective assistance of counsel, (2) the district court erroneously
excluded certain evidence, (3) the state engaged in prosecutorial misconduct during closing
argument, (4) the district court improperly instructed the jury, (5) media communications
with the jury prejudiced the result of her trial, (6) various other procedural violations
resulted in prejudice against her, (7) the dist rict court abused its discretion and exceeded
its authority in sentencing, and (8) her conviction was barred by double jeopardy. The only
reversible error we find is in Grazzini-Rucki’s sentencing. We affirm in part, reverse in
part, and remand to the district court to execute Grazzini-Rucki’s sentence.
FACTS
In 2011, Grazzini-Rucki divorced her ex- husband after 19 years of marriage. They
have five children, including S.R. (age 14 in 2013) and G.R. (age 13 in 2013). Following
the divorce, custody of the ch ildren changed several times until April 19, 2013, when a
district court judge filed an order granting a paternal aunt exclusive physical and legal
custody of all five children. That evening, the aunt picked up two of the children, S.R. and
G.R., and took them home. Shortly after th eir arrival, S.R. surreptitiously telephoned
Grazzini-Rucki, told her that she and G.R. were planning on running away, and asked for
her help in doing so. S.R. a nd G.R. then left the house and met Grazzini-Rucki a short
distance away. After picking up S.R. and G.R., Grazzini-Rucki dropped them off at a ranch
owned by Gina and Douglas Dahlen. S.R. and G.R. remained at the Dahlens’ ranch until
November of 2015 when they were recovered by the police.

3
During the intervening time period, bot h the police and Grazzini-Rucki’s ex-
husband were attempting to locate S.R. and G. R. In June of 2013, the district court
handling Grazzini-Rucki’s divorce ordered Grazzini-Rucki and her ex-husband to divulge
any information they had about the whereabout s of S.R. and G.R. Despite this order,
Grazzini-Rucki never indicated to her ex-husband or the court that she had any information
regarding S.R. and G.R.’s lo cation. In November 2013, while the children were still
missing, Grazzini-Rucki’s ex-husband was awarded sole physical and legal custody of S.R.
and G.R. Finally, in the summer of 2015, police received information implicating
Grazzini-Rucki in the disappearance of her children. Based on that information, she was
charged with eight counts of depriving another of custodial or parental rights under Minn.
Stat. § 609.26 (2012): two for concealing a ch ild from a parent with parental rights, two
for concealing a child from a person with cust ody, two for failing to return a child in
violation of a court order, and two for contributing to a child being a runaway.
A jury trial took place from July 18 to 28, 2016. Among the witnesses called by the
state was Gina Dahlen, the only witness in the state’s case-in-chief with firsthand
knowledge of Grazzini-Rucki leaving S.R. and G.R. at the ranch. At the close of the state’s
case-in-chief, Grazzini-Rucki moved for a judg ment of acquittal on a basis unrelated to
this appeal. After that motion was denied, Grazzini-Rucki proceeded with her case-in-
chief. Among other things, she attempted to offer evidence of information that had led her
to believe that her actions were necessary to prevent physical or sexual assault or
substantial emotional harm to her children. As relevant to this appeal, three such pieces of
evidence were excluded: (1) a news interview with S.R. and G.R. that occurred shortly

4
after Grazzini-Rucki left them at the ranch, (2) testimony that a GPS tracker was found on
a car belonging to Grazzini-Rucki’s boyfriend, and (3) social services records based on an
interview of S.R. conducted after her recovery from the ranch. Toward the end of her case-
in-chief, Grazzini-Rucki again moved for judgment of acquittal, this time arguing that, at
the time the state rested its case-in-chief, it had failed to corroborate Dahlen’s accomplice
testimony by any other evidence linking Grazzini-Rucki to the crime. Although Grazzini-
Rucki admitted that her case-in-chief had corroborated Dahlen’s testimony, she asked the
district court to grant the motion based on the evidence that was on the record at the time
the motion should (according to Grazzini-Rucki) have been made. The district court denied
this motion and submitted the case to the ju ry, which found Grazzini -Rucki guilty of six
counts.
Following the verdict, Grazz ini-Rucki was sentenced on two of the six counts. On
count one, she was sent enced to a stayed year-and-a-day prison term and three years of
probation. As a condition of pr obation, she was required to serve 250 days in jail. On
count three, she was sent enced to a stayed year-and-a-day prison term, running
concurrently with her count-one prison te rm, and three years of probation, running
consecutively to her count-one probation. At her sentencing hearing, Grazzini-Rucki
moved to terminate probation and execute her prison terms. That motion was denied. At
two subsequent probation-viola tion hearings, the district court twice denied renewed
motions to execute the prison terms. Followi ng the second probation-violation hearing,
the court relieved the county corrections department of its probation-supervision obligation
and placed Grazzini-Rucki on court-supervised probation.

5
Grazzini-Rucki appeals.
D E C I S I O N
I. Grazzini-Rucki’s counsel was not ineffective.

To prevail on an ineffectiv e-assistance-of-counsel argument, a defendant “must
affirmatively prove that his counsel’s repres entation ‘fell below an objective standard of
reasonableness’ and ‘that there is a reas onable probability that , but for counsel’s
unprofessional errors, the result of the pr oceeding would have been different.’” Gates v.
State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington , 466 U.S.
668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). We review ineffective-assistance-of-
counsel arguments de novo. Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016).
In support of her argument that her counse l was deficient, Grazzini-Rucki argues
(1) that Minn. Stat. § 634.04 (2014) requires accomplice testimony to be corroborated by
other evidence showing the defe ndant committed the offense in order for it to serve as a
basis for conviction and (2) that, at the clos e of the state’s case-in-chief, only Dahlen’s
uncorroborated testimony implicated Grazzin i-Rucki in her daugh ters’ disappearances;
therefore, (3) her trial counsel was deficient in failing to argue for a judgment of acquittal
on that basis after the state rested its case-in-chief. Although this argument might hold true
if premises (1) and (2) were both met, because other evidence in the state’s case-in-chief
implicated Grazzini-Rucki, we conclude that her trial coun sel’s representation was not
deficient.
Grazzini-Rucki argues that there was no corroboration of Dahlen’s testimony.
However, “corroborative evidence need not be of itself adequate to establish a prima facie

6
case of guilt. Instead, it must simply affirm the truth of the accomplice’s testimony and
point to the guilt of the defendant in some substantial degree.” State v. Chavarria-Cruz,
839 N.W.2d 515, 519 (Minn. 2013) (quotati on omitted). Evidence offered by the state
meets this burden.
During its case-in-chief, the state established, through witnesses other than Dahlen,
that:
(1) Grazzini-Rucki is the mother of S.R. and G.R.;
(2) there was controversy regarding cu stody of S.R. and G.R. following
the divorce;
(3) after S.R. and G.R. disappeared, their aunt suspected the children had
gone to see their mother;
(4) during the first year of the police investigation into her daughters’
disappearances, Grazzini-Rucki never inquired into the status of the
investigation;
(5) Grazzini-Rucki was unaccounted for when S.R. and G.R.
disappeared; and
(6) a photo, taken near the time of the disappearances, of a business
owned by Douglas Dahlen was found on the cellphone of a friend of
Grazzini-Rucki.

Although this evidence, by itself, does not “establish a prima facie case of guilt,” it does
“point to the guilt of the defendant in some substantial degree.” This evidence establishes
motive, suggests Grazzini-Rucki knew where S. R. and G.R. were, and implies a link
between Grazzini-Rucki and the Dahlens at the time of the disappearance. As a result, had
Grazzini-Rucki’s trial counsel made the argument in question, it would have been unlikely
to succeed. Therefore, Grazzini-Rucki’s tr ial counsel did not fall below the objective
standard of reasonableness in failing to make it. Because Grazzini-Rucki’s trial counsel’s
representation did not fall below this standard, we conclude that Grazzini-Rucki is not
entitled to a new trial based on ineffective assistance of counsel.

7
II. The district court did not abuse its disc retion in excluding particular pieces of
evidence.

Grazzini-Rucki argues that she must be granted a new trial because the district court
abused its discretion when it excluded (A) a ne wscast in which S.R. and G.R. expressed
fear of their father, (B) testimony that Grazzini-Rucki’s ex-husband planted a GPS tracker
on Grazzini-Rucki’s boyfriend’s car after S. R. and G.R. disappeared, and (C) social
services records indicating S.R.’s continued f ear of her father after she was recovered.
Grazzini-Rucki sought to introduce this eviden ce to support her affirmative defense that
she reasonably believed that her actions were necessary to protect S.R. and G.R. from
physical or sexual assault or substantial emotional harm. “Evidentiary rulings rest within
the sound discretion of the trial court and w ill not be reversed absent a clear abuse of
discretion. On appeal, the appellant has th e burden of establishing that the trial court
abused its discretion and that appe llant was thereby prejudiced.” State v. Amos , 658
N.W.2d 201, 203 (Minn. 2003) (citation omitted). This standa rd of review applies even
when “the defendant claims that the excl usion of evidence deprived him of his
constitutional right to a meaningful opportu nity to present a complete defense.” State v.
Zumberge, 888 N.W.2d 688, 694 (Minn. 2017).
A. Newscast Exclusion
The district court excluded the newscast on relevance and, alternatively, on lack-of-
foundation and rule-of-completeness grounds. Relevant evidence is generally admissible,
and includes “evidence having any tendency to ma ke the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would

8
be without the evidence.” Minn. R. Evid. 402, 401. Eviden ce that is not relevant is not
admissible. Minn. R. Evid. 402. Even rele vant evidence may be excluded if it is
substantially more prejudicial than probative. Minn. R. Evid. 403.
Here, it is apparent from a review of the newscast that portions of it are relevant to
the reasonableness of Grazzini-Rucki’s belief that depriving others of custody of S.R. and
G.R. was necessary to prevent harm to them. However, other portions are both not relevant
and highly prejudicial. Alth ough the district court did no t review the newscast before
excluding the exhibit, its ruling indicates the court was nevertheless aware of this potential
issue and attempted to balance the compe ting concerns by excluding the newscast but
permitting Grazzini-Rucki to testify that she saw the newscast shortly after S.R. and G.R.
disappeared and that the children expressed fear of their father therein. Based on the need
to balance these concerns, the district court did not abuse its discre tion in excluding the
newscast.
B. GPS-Testimony Exclusion
The district court excluded the GPS te stimony on relevance grounds. Grazzini-
Rucki argued that the GPS testimony was relevant to show that she was aware that her ex-
husband was stalking her to “get at” her daughters. She did no t, nor does she before this
court, however, explain how the conclusion that her ex-husband sought to harm S.R. or
G.R. flows from the alleged stalking of her. Du e to this missing link, the district court
concluded that the inference to be drawn from the GPS testimony was that her ex-husband
was attempting to locate the ch ildren, not that he wanted to harm them, and therefore the
testimony was not relevant. Although other inferences might be drawn from this testimony,

9
it was not an abuse of discretion for the district court to exclude the testimony. Cf. State v.
Ture, 632 N.W.2d 621, 631 (Minn. 2001) (noting a court may take into consideration
surrounding circumstances when determining what inferences may be drawn from a piece
of evidence and whether that evidence is therefore admissible).
C. Social-Services-Records Exclusion
The district court excluded the social se rvices records on relevance grounds.
Grazzini-Rucki argues that the records te nded to corroborate her defense that she
reasonably believed reuniting the children with their father would subject them to
substantial emotional harm because they show the depth of the children’s fear of him.
However, Grazzini-Rucki does no t explain how statements made to social services after
S.R. and G.R.’s recovery could have impacted her beliefs during the time the children were
missing. Rather, as the district court reasoned, because the statements were made after the
recovery of the children, it is impossible for the excluded statements to have played a role
in impacting Grazzini-Rucki’s decision-making. The exclusion of the records was not an
abuse of discretion. See Zumberge, 888 N.W.2d at 695 n.1 (excluding evidence for a self-
defense defense on the basis of relevance because the defendant did not prove he was aware
of the evidence at the time of the shooting).
III. The state did not commit prosecutorial misconduct.

Grazzini-Rucki argues that she must be granted a new trial because the state engaged
in prosecutorial misconduct during its closing argument. Grazzini-Rucki did not object at
trial. When a defendant fails to object to alleged prosecutorial misconduct, the alleged
misconduct is reviewed under a modified plain-error standard. State v. Peltier, 874 N.W.2d

10
792, 803 (Minn. 2016). “Under that test, the defendant has the burden to demonstrate that
the misconduct constitutes (1) error, (2) that is plain. If plain error is established, the
burden then shifts to the State to demonstrate that the error did not affect the defendant’s
substantial rights.” Id. Under this modified plain-error standard, on the third or “prejudice”
prong, the state bears the burden of proving that there is no reasonable likelihood that the
absence of the misconduct would have a significant effect on the jury’s verdict. Id. at 803-
04. “If all three prongs of the test are met, we may correct the error only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 804
(quotation omitted).
A. Reasonableness of Grazzini-Rucki’s Affirmative Defense
The state “must avoid inflaming the jury ’s passions and prejudices against the
defendant.” State v. Porter , 526 N.W.2d 359, 363 (Minn. 1995). “While the state’s
argument need not be ‘colorless, ’ it must be based on the eviden ce produced at trial, or
reasonable inferences from that evidence.” Id.
Grazzini-Rucki argues that the state went beyond the evidence, intending to inflame
the juror’s passions, when the state critiqued the reasonableness of her affirmative defense
that she was acting to protect her children. During closing, the state argued that it was
unreasonable for Grazzini-Rucki to leave S.R. and G.R. “with complete strangers,” one of
which, “for all she knows . . . could have been a registered sex offender.” Notably, the
state did not criticize jury members if they chose to believe Grazzini-Rucki, nor did it imply
that jurors would be unable to live with themselves if they did not return a guilty verdict.
See, e.g. , id. (reversing convictions based on such statements). Rather, the state’s

11
argument, when considered in context, was calculated to attack the reasonableness of
Grazzini-Rucki’s defense by asserting that her behavior did not accord with what a parent
truly concerned for her children’s safety woul d do. Such argument is permissible during
closing when based on the evidence, as it was here. State v. Davis, 735 N.W.2d 674, 682
(Minn. 2007). We therefore conclude that the state’s argument regarding the
reasonableness of Grazzini-Rucki’s defense was not prosecutorial misconduct.
B. Impact on the Children
Grazzini-Rucki argues that the state’s discussion of the impact of Grazzini-Rucki’s
actions on her children improperly urged jurors to “put themselves in the shoes of the
victim,” State v. Johnson, 324 N.W.2d 199, 202 (Minn. 1982), or evoked juror sympathy
by commenting on issues unrelated to the evidence, State v. McNeil, 658 N.W.2d 228, 234-
35 (Minn. App. 2003). The re strictions Grazzini-Rucki cites, however, “do not preclude
all arguments relating to the impact of the crime on the victim.” Nunn v. State, 753 N.W.2d
657, 662 (Minn. 2008). It is acceptable “for a prosecutor to talk about what the victim
suffers and to talk about accountability, in order to help persuade the jury not to return a
verdict based on sympathy for the defendant.” State v. Montjoy , 366 N.W.2d 103, 109
(Minn. 1985).
During closing, the state asked the jury to “think about” the “emotional harm”
Grazzini-Rucki committed against S.R. and G.R. when she “robbed [them] of living normal
lives with their family and friends during some very critical, critical development years.”
This argument was permissible. Taking, as we must, the argument in the context of the
whole trial, as opposed to in isolation, State v. Munt, 831 N.W.2d 569, 587 (Minn. 2013),

12
it is apparent that the statements were not intended to have the jury “put themselves in the
shoes of the victim,” but rather to ensure the jury did not “return a verdict based on
sympathy for the defendant.” This was a leg itimate concern for the state, as during trial
Grazzini-Rucki had offered evid ence that may have placed he r in a sympathetic light.
Additionally, the argument was al so appropriate to counter Grazzini-Rucki’s affirmative
defense, because pointing out the negative im pact of her actions on S.R. and G.R.
undermined Grazzini-Rucki’s ar gument that her actions were necessary to protect them
from harm. We therefore conclude that the state’s argument regarding the impact on S.R.
and G.R. was not prosecutorial misconduct.
Because Grazzini-Rucki has not establishe d the first prong of the plain-error
standard, it is unnecessary to consider the remaining prongs.
IV. The district court abused its discret ion and erred in sentencing Grazzini-
Rucki.

Grazzini-Rucki argues that the district court abused its discretion by imposing
probationary sentences more onerous than he r stayed prison sentences and exceeded its
authority by imposing concurrent stayed pr ison sentences and cons ecutive probationary
sentences. The state agrees. Both Grazzini-Rucki and the state seek execution of the stayed
sentences.
A district court’s probationary sentence is reviewed for abuse of discretion. State
v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000). Grazzini-Rucki recognizes that she did not
have a statutory right to demand execution of her sentences in lieu of a stay of imposition
because she would serve less than nine months in prison. See Minn. Stat. § 609.135,

13
subd. 7 (2016). But she argues that the dist rict court abused its discretion by imposing
probationary sentences that were more onerous than the stayed prison sentences and that,
as a result, the district court should have granted her requests to execute her sentences.
In State v. Randolph, the supreme court held that a convicted criminal defendant has
the right to refuse probation and to execution of sentence when the conditions attached to
a probationary sentence make it more onerous than a prison sentence. 316 N.W.2d 508,
510 (Minn. 1982). The court reasoned that, in such a case, “the trial court, in effect, has
not followed the Sentencing Guidelines. Or, to put it another way, the court has followed
the Sentencing Guidelines in form but not in spirit or effect.” Id. In State v. Rasinski, the
supreme court made clear that the relative onerousness of a probationary sentence and an
executed sentence is not measured “only in terms of the relative lengths of incarceration.”
472 N.W.2d 645, 651 (Minn. 1991). “To the contrary, Randolph and its progeny refer to
the ‘conditions of probati on’ of which length of in carceration is only one.” Id. T h e
“cumulative effect of the prob ationary conditions” may creat e “a more onerous sentence
than the executed prison sentence prescribed by the sentencing guidelines.” Id.
Applying these principles, we agree with Grazzini-Rucki and the state that Grazzini-
Rucki’s probationary sentences were more onerous than her stayed sentences. Grazzini-
Rucki was sentenced to concurrent presumptiv e stayed sentences of a year and a day in
prison. Execution of her conc urrent sentences at sentencing would have resulted in
Grazzini-Rucki serving eight months in prison and four months on supervised release. As
conditions of her probation, the court ordere d, among other things, that Grazzini-Rucki
serve 250 days in jail, an additional 15 days in jail beginning on November 18 of each year

14
she is on probation, and 12 additional days in jail each year she does not complete 12 days
of sentence to service. Th e cumulative effects of the cond itions of probation imposed by
the district court rendered her probationary sentences more onerous than her prescribed
executed sentences.
At sentencing and at subs equent probation-violation he arings, the district court
denied Grazzini-Rucki’s motions to execut e her prison terms. Following the second
probation-violation hearing, the court placed Grazzini-Rucki on court-supervised
probation. Because Grazzini-Rucki’s probationary sentences were more onerous than her
stayed sentences, the district court abused its discretion in not executing her sentences. We
therefore remand to the district court to execute the sentences.
Grazzini-Rucki’s probationary sentences also suffer from another flaw. We agree
with Grazzini-Rucki and the state that the dist rict court exceeded its authority when it
imposed concurrent prison terms but consecutive probationary terms.
The interpretation of a statute and the sentencing guidelines is a question of law that
is subject to de novo review. State v. Williams, 771 N.W.2d 514, 520 (Minn. 2009). Minn.
Stat. § 609.15, subd. 1(a) (2014), provides that “when separate sentences of imprisonment
are imposed on a defendant for two or more crimes . . . the court shall specify whether the
sentences shall run concurrently or consecutively.” This statute “presumes that a district
court has a choice between imposing a concurrent or consecutive sentence.” State v.
Gilbert, 634 N.W.2d 439, 442 (Minn. App. 2001) (emphasis added), review denied (Minn.
Dec. 11, 2001). When sentenci ng additional crimes beyond th e first in a set of multiple
crimes, a court exceeds its authority when it imposes both a stayed concurrent prison term

15
and a consecutive probationary term for the same crime. State v. Moore, 340 N.W.2d 671,
673 (Minn. 1983).
The district court elected to sentence Grazzini-Rucki on counts one and three,
imposing separate sentences on each count. As noted above, on count one, Grazzini-Rucki
was sentenced to a stayed year-and-a-day prison term and a three-year probationary term.
On count three, Grazzini-Rucki was sentenced to a stayed year-and-a-day prison term and
a three-year probationary term. The district court ordered count three’s prison term to run
concurrently with count one’s prison term, but ordered count three’s probationary term to
run consecutively with count one’s probationary term. As the Minnesota Supreme Court
held in Moore, such a sentencing structure exceeds th e district court’s authority, because
the court must sentence either consecutively or concurrently. Because we are directing
that the district court execute Grazzini-Rucki ’s concurrent prison sentences, this error
becomes moot.
V. The district court did not abuse it s discretion in instructing the jury.

Grazzini-Rucki argues that she must be granted a new trial because the district court
improperly instructed the jury on (A) Grazzini-Rucki’s affirmative defense and (B) liability
for crimes of another. Because Grazzini-Rucki did not object to these instructions at trial,
we review them for plain error. State v. Washington-Davis, 881 N.W.2d 531, 541 (Minn.
2016). “Under the plain-error test, we determine whether the jury instructions
(1) contained an error, (2) that was plain, and (3) that affect ed the defendant’s substantial
rights. If the defendant establishes these three prongs, we may correct the error only if it

16
seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
(quotation omitted).
A. Affirmative Defense Instruction
The district court used the standard jury instruction for the affirmative defense
raised by Grazzini-Rucki. That instruction states:
It is a defense to this charge if: (1) the defendant reasonably
believed the action taken was ne cessary to protect the child
from physical or sexual assault or substantial emotional
harm. . . . The burden is on the State to prove beyond a
reasonable doubt that the defe ndant did not act in such
circumstances and with such intent.

10 Minnesota Practice, CRIMJIG 15.07 (2016). Grazzin i-Rucki argues this instruction
failed to properly instruct the jury about the applicable factors of the affirmative defense.
A comparison of the instruction given and the statute on which it is based reveals
no error. Under Minn. Stat. § 609.26, subd. 2 (2012), the state must prove beyond a
reasonable doubt that Grazzini-Rucki did no t act under the reasonable belief that her
actions were necessary to protect her children from physical or sexual assault or emotional
harm. The instruction given accurately reflects this requirement. We conclude that there
was no error in giving this instruction.
B. Liability-for-Crimes-o f-Another Instruction
While reading the jury instructions aloud to the jury, the district court began reading
the liability-for-crimes-of-another instruction. Midway through the first sentence, the court
stopped and decided to explain why the instruction was being given, and then re-read the
instruction from the beginning. The effect of this was that the trial court said, “The

17
defendant is guilty of a crime—let me explain: The next instruction is captioned Liability
for Crimes of Another”; then went on to ex plain the presence of the liability-for-crimes-
of-another instruction; and then said, “The defendant is guilty of a crime committed by
another person when the defendant has played an intentional role in aiding the commission
of the crime and made no reasonable effort to prevent the crime before it was committed.”
Grazzini-Rucki argues that the false start on th e instruction (“The defendant is guilty of a
crime . . .”) amounts to the district court instructing the jury that she is guilty. However, a
review of the context makes clear that this was neither the intent nor the effect of the district
court’s statement. Rather, context indicate s that the court merely began to read the
instruction, backed up to explain the reason why the instruction was being given, and then
read the instruction again from the beginning. We conclude that there was no error in the
presentation of this instruction.
VI. Media communications with the jury di d not prejudice the result of Grazzini-
Rucki’s trial.

Grazzini-Rucki argues that she must be granted a new trial because of media contact
with the jury during her trial. Because Grazzini-Rucki di d not object to these contacts or
make any motions based upon them at tria l, we review them for plain error. See State v.
Ramey, 721 N.W.2d 294, 297 (Minn. 2006) (“On appeal, an unobjected-to error can be
reviewed only if it constitutes plain error a ffecting substantial rights.”). In reviewing
whether to grant a new trial based on alleged juror misconduct, we consider the following
factors: (1) the nature and source of the prejudicial matter, (2) the number of jurors exposed

18
to the misconduct, (3) the weight of evidence, and (4) the likelihood that curative measures
were effective in reducing the prejudice. State v. Cox, 322 N.W.2d 555, 559 (Minn. 1982).
Grazzini-Rucki points to two media contacts with the jury that she claims prejudiced
the result of her trial. The first allegedly occurred when two jurors reported that there was
a StarTribune article on the jury room tabl e about Grazzini-Rucki. However, Grazzini-
Rucki points to nothing in the record, nor does an independent review reveal any discussion
or motion related to this alleged event. The only source Grazzini-Rucki cites in support of
this occurrence is a news article uncorroborated by anything in the record. “It is well settled
that an appellate court may not base its decision on matters outside the record.” Plowman
v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977). Having nothing in the record
to consider, we decline to consider the alleged error here.
Grazzini-Rucki also claims that, three ti mes during trial, members of the media
approached jurors, resulting in prejudice. Although Grazzini-Ruck i does not point to
anything in the record in support of this claim, a review of the record does reveal one
incident where a reporter contacted an unknown number of jurors during their lunch break.
The reporter asked the jurors, “W ould you be willing to speak with me after the fact?”
When brought to the attention of the court, Gr azzini-Rucki’s attorney said that he did not
“think there’s any possible basis to bring a ny motion for any purpose based upon the fact
. . . if that happened.” B ecause no party moved for a mistri al, the district court did not
consider whether to order one, instead being sa tisfied by the prosecutor’s proposal to tell
the reporter to stop attempting to talk to the jury before the trial concluded.

19
Applying the plain-error standard to this incident, we see no error in the district
court’s treatment of it. Looking at the event through the lens of the Cox factors, we observe
that: (1) the reporter’s contact did not provi de inadmissible inform ation, threaten, or
encourage the jury to vote a cer tain way, (2) although the numb er of jurors affected is
unknown, the nature of the reporter’s conduc t minimizes any harm even if the entire jury
was contacted, (3) the weight of the evidence is heavily against Grazzini-Rucki, whereas
the weight of the reporter’s statement was de minimis, and (4) the court took steps to
prevent the reporter from doing any further harm by agreeing to have the prosecutor
instruct the reporter to refrain from contacting the jury in the future. Cox does not require
a mistrial to be ordered on these facts, see 322 N.W.2d at 559, and we conclude there was
no error in the district court’s not doing so.
VII. Grazzini-Rucki’s sentences for two coun ts of depriving another of custodial or
parental rights did not violate the bar against double jeopardy.

Grazzini-Rucki argues that one of her sentences must be reversed because
sentencing her on more than one count of de privation of custodial or parental rights
subjects her to double jeopardy. We review double jeopardy issues de novo. State v. Leroy,
604 N.W.2d 75, 77 (Minn. 1999).
A jury found Grazzini-Rucki guilty of six counts of deprivation of custodial or
parental rights, and the district court senten ced her on two of those counts: count one,
which covers depriving Grazzini-Rucki’s ex-husband of parental rights to S.R. on April 19,

20
2013; and count three, which co vers depriving the children’s aunt of custody of S.R. on
April 19, 2013.1
The United States and Minnesota Constituti ons, as well as Mi nn. Stat. § 609.035
(2014), prohibit double jeopardy. The statutory prohibition is broader than either
constitution’s prohibition; therefore, we limit our discussion to the statute. State v. Bakken,
871 N.W.2d 418, 423 (Minn. App. 2015), aff’d, 883 N.W.2d 264 (Minn. 2016). The statute
provides that “if a person’s conduct constitute s more than one offense under the laws of
the state, the person may be punished for only one of the offenses.” Minn. Stat. § 609.035,
subd. 1. However, under the multiple-victim exception, “courts are not prevented from
giving a defendant multiple sentences for multiple crimes arising out of a single behavioral
incident if: (1) the crimes affect multiple victims; and (2) mu ltiple sentences do not
unfairly exaggerate the criminality of the defendant’s conduct.” State v. Skipintheday, 717
N.W.2d 423, 426 (Minn. 2006).
Applying these rules to Grazzini-Rucki’s case, assuming, without deciding, that her
actions constituted a single course of conduc t, they would nevert heless fall within the
multiple-victim exception to the statute. Both the children’s father and the children’s aunt
were deprived of rights; therefore, each is a victim. Additionally, Grazzini-Rucki has not
shown that sentencing for mu ltiple victims would unfairly ex aggerate the criminality of
Grazzini-Rucki’s conduct. See State v. Hough , 585 N.W.2d 393, 398 (Minn. 1998)

1 During the sentencing hearing, the district court indicated that co unt three referred to
depriving the children’s aunt of custody of G.R. (not S.R.). Our review of the amended
complaint, however, indicates that count three refers to depriving the aunt of custody of
S.R. As these were the sentences entered, they are the ones that we review.

21
(placing on the defendant the burden of making such a showing). We therefore conclude
that sentencing Grazzini-Rucki on counts on e and three did not s ubject her to double
jeopardy.
VIII. Grazzini-Rucki’s other pro se arguments are meritless.

Grazzini-Rucki raises several additional arguments in her pro se supplemental brief.
First, Grazzini-Rucki argues her punish ment is cruel and unusual. The Eighth
Amendment forbids “extreme sentences that ar e grossly disproportionate to the crime.”
Graham v. Florida , 560 U.S. 48, 60, 130 S. Ct. 2011 , 2021 (2010) (quotation omitted).
However, apart from her complaint about her probationary sentences, which we addressed
above, Grazzini-Rucki provides no ar gument why her sentences are grossly
disproportionate. Further, because we remand for execution of the st ayed sentences, we
do not need to reach the cons titutional question of whether the probationary sentences
violate the Eighth Amendment.
Second, Grazzini-Rucki argues she was not able to pr esent a complete defense
because she was denied the opportunity to review a letter from a psychologist
recommending her daughters not be forced to testify. However, she cites to nothing in the
record in support of this allegation, and an independent review reveals only that the letter
was scanned in to the confiden tial portion of the district cour t file, but not that Grazzini-
Rucki ever attempted to access the letter or was denied access to it. Moreover, the district
court ultimately chose not to heed the letter’s advice, refusing to quash subpoenas requiring
S.R. and G.R. to testify. As Grazzini-Rucki cannot point to anything in the record showing
that she was denied access, or, ev en if she was, that the deni al impaired her defense, the

22
alleged lack of access to the letter forms no basis for appeal. Brooks v. State, 897 N.W.2d
811, 819 (Minn. App. 2017) (“[I]ssues not adequately briefed are waived.”).
Third, Grazzini-Rucki argues that her ex-h usband and the children’s aunt engaged
in witness tampering during the month leading up to trial by forcing S.R. to “recant” prior
statements she made to social services. Gra zzini-Rucki’s only support for this assertion,
however, comes from a police interview th at is not part of the record. See Minn. R. Civ.
App. P. 110.10 (“The documents filed in the trial court, the ex hibits, and the transcript of
the proceedings, if any, shall constitute the reco rd on appeal in all ca ses.”) As a result,
there is no basis for her appeal on this ground. Plowman, 261 N.W.2d at 583 (holding an
appellate court may not base its decision on matters outside the record).
Fourth, Grazzini-Rucki argues that the code of judicial conduct required the removal
of the district court judge from her case base d on the judge’s (1) past role as a judge in
criminal matters involving Grazzini-Rucki’s ex-husband and (2) bias, as evidenced by
statements made during sentencing. As to the first, presiding over a prior matter in which
witnesses in the present matter were parties does not constitute grounds for disqualification.
Teachout v. Wilson , 376 N.W.2d 460, 465 (Minn. App. 1985), review denied (Minn.
Dec. 30, 1985). As to bias, “opinions formed by the judge on the basis of facts introduced
or events occurring in the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible.” State v. Burrell, 743 N.W.2d
596, 603 (Minn. 2008). The statements Graz zini-Rucki points to as establishing bias
include (1) commending Grazzini-Rucki’s ex-husband’s victim statement,

23
(2) admonishing Grazzini-Rucki for her conduct, and (3) noting the importance of family
in society. These statements do not “display a deep-seated favoritism or antagonism that
would make fair judgment impossible”; therefore, they do not constitute a showing of bias
that would be grounds for removal.
Fifth, Grazzini-Rucki argues that the pros ecutor used perjured testimony to obtain
a conviction. Other than this general allegation, however, Grazzini-Rucki does not specify
any testimony that would form a basis for revi ew. Absent such a showing, we conclude
that Grazzini-Rucki’s claim of perjury is without merit. See Brooks, 897 N.W.2d at 819.
Lastly, Grazzini-Rucki argues she was deni ed effective counsel because her trial
counsel failed to convince the district court to admit certain pieces of evidence. However,
this issue was not raised until Grazzini-Rucki’s pro se reply brief. “The reply brief must
be confined to new matter raised in the brief of the responden t.” Minn. R. Civ. App. P.
128.02, subd. 3. Issues raised for the first time in an appellant’s reply brief, having not
been raised in respondent’s brief, are “not proper subject matter for [the] appellant’s reply
brief,” and they may be deemed forfeited. State v. Yang , 774 N.W.2d 539, 558 (Minn.
2009). Because Grazzini-Rucki did not raise this issue in her pro se appellant brief and the
state did not raise it in its brief, the issue is forfeited, and Grazzini-Rucki is not entitled to
relief on this ground.
Affirmed in part, reversed in part, and remanded.