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This opinion will be unpublished and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
A16-2047

State of Minnesota,
Respondent,

vs.

Darryl Don Freeberg,
Appellant.

Filed December 11, 2017
Affirmed
Hooten, Judge

Stearns County District Court
File No. 73-CR-15-9356

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Mark D. Nyvold, Special Assistant Public Defender, Fridley, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Hooten, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant cha llenges the district court’s finding that he was absent without
justification from trial and its decision to proceed with trial in his absence . Additionally,
2
appellant argues that the district court abused its sentencing discretion by ordering him to
serve his year and a day sentence for violating a restraining order consecutive to his 60-
month sentence for third-degree criminal sexual conduct. We affirm.
FACTS
Background
In the summer of 2014, appellant Darryl Don Freeberg, a 19-year-old man, began
dating M.S., a 14-year-old girl. In April 2015, M.S.’s mother discovered Freeberg in
M.S.’s bedroom closet and began arguing with him. After he left, Freeberg threw rocks at
a basement window and broke it. M.S.’s mother called the police, but by the time an officer
arrived, M.S. had run away with Freeberg. M.S. did not return home for three or four days.
When she returned home, M.S.’s mother, on behalf of herself and M.S., obtained a
harassment restraining order against Freeberg. A deputy serve d the restraining order on
Freeberg in May 2015.
Freeberg continued to have contact with M.S. over th at summer. When Freeberg
first entered their lives, M.S. and her mother lived in Brooklyn Park. Then in August 2015,
M.S.’s family lived in St. Paul for a couple of weeks before they moved to their new home
in St. Cloud. The first night M.S. was in St. Paul, she ran away again with Freeberg. M.S.
and Freeberg stayed with Freeberg’s sister and then lived in the basement at the sister’s
apartment building. Freeberg had sex with M.S. during the time they lived at the sister’s
apartment. Also, during this period of time, Freeberg began to physically abuse M.S. On
more than one occasion, Freeberg hit M.S., causing bruises all ov er her body. A t least
once, he threatened to kill her while he was beating her. On another occasion, Freeberg
3
attempted to suffocate M.S.
M.S. attempted to leave, but Freeberg stopped her. Eventually, M.S. was able to
call her cousin, and the cousin picked M.S. up and took her to the cousin’s house. Several
days later, Freeberg showed up at the cousin’s house and spent the night with M.S. Upon
discovering Freeberg at the house the next morning, the cousin called M.S.’s mother, who
then brought M.S. to the family’s new home in St. Cloud.
Freeberg continued to contact M.S. through social media. In September, he showed
up multiple times at M.S.’s house, and occasionally, without the knowledge and permission
of M.S.’s mother, Freeberg sle pt in M.S.’s bedroom. In October, Freeberg sent M.S.
threatening messages. He threatened to break things, cho ke M.S. in front of her little
brother, and kill M.S. On October 9, M.S. and her mother reported Freeberg’s behavior to
the police. Then on October 13, Fre eberg showed up at M.S .’s house and she let him in.
Upon learning of this, M.S.’s mother called the police, who arrested Freeberg.
Notwithstanding a domestic abuse no contact order that prohibited him from having contact
with M.S., Freeberg continued to contact M.S. by telephone while he was in jail awaiting
trial. Consistent with jail policy, Freeberg’s telephone contacts with M.S. were recorded.
Trial
Twice before trial , Freeberg expressed a desire to discharge his counsel. At a
settlement conference, Freeberg said he was concerned about how infrequently he had been
meeting with his counsel and mentioned having disagreements about strategy. Initially,
Freeberg stated that he had only met with his counsel once, but then said that he had seen
her the day before each court appearance. After the district court informed Freeberg that
4
he had the right to represent himself, and explained what representing himself would
involve,1 Freeberg decided to keep his counsel.
On the first day of the pretrial hearing, defense counsel reported to the district court
that Freeberg was unwilling to listen to recently disclosed recordings of his phone calls
with M.S. from the jail, and that when she tried to play the calls so that they could discuss
trial strategy, Freeberg turned off her phone and eventually left the room. 2 In response,
Freeberg again raised his concern that he never sees his counsel. Freeberg would also not
discuss with his counsel whether he wanted to stipulate to an element of the charge s to
avoid his previous convictions being presented to the jury. The district court gave Freeberg
and counsel time to discuss the stipulation, ordered Freeberg to listen to the phone calls
with his counsel that evening, and adjourned for the day. Freeberg r efused to meet with
his counsel and, when the district court reconvened the next day, Freeberg again raised his
desire to discharge counsel. After a short discussion with the district court, Freeberg agreed
he would keep his counsel.
On the first day of tr ial, Freeberg again attempted to discharge his counsel, telling
the district court, “ I don’t want her on my case no more. She can move over there with

1 After discussing with Freeberg that he had never rep resented himself at trial, the district
court asked him:
So do you want to be the first time that you try to do all of these
things in a case where there are 19 charges against you, and
you are looking at months and months of possible time in
prison . . . if a jury convicts you? . . . Is that—is that how you
want—that’s kind of like taking batting practice in a World
Series.
2 At an earlier settlement conference, defense counsel had also reported Freeberg was
unwilling to listen to the terms of the state’s plea offer.
5
[the prosecutor]. That’s where she belongs. She’s not representing me anymore. I’m not
going to do this today.” He also denied that the trial was going to happen that day, denied
that he would represent himself if he fired counsel, and demanded that he be returned to
jail. The district court repeatedly informed Freeberg that the trial was going to happen that
day, and he could either have his counsel represent him, or he could fire her and represent
himself. Freeberg argued back, saying the trial was not going to happen, he was not going
to represent himself, and his counsel was fired. The district court informed Freeberg that
he had the right to be present at his trial, that he could waive that right, and that he would
be removed if he was disruptive.
Each time the district court told Freeberg that the trial was going to happen and he
would have to represent himself if he fired his counsel, Freeberg did not give a definitive
answer on whether he still wanted to discharge counsel. Instead, he kept denying that the
trial was g oing to happen. The record indicates that Freeberg denied trial was going to
happen over 30 times, demanded he be returned to jail or said he would leave over 20 times,
and denied he would represent himself over 10 times. Freeberg’s counsel attempted to
make a record about the consequences of firing her, and ask ed Freeberg if he still wanted
to fire her, but he repeatedly said he did not know, and he was “not doing anything today.”
On five occasions, Freeberg told the district court that he would be disruptive; and after the
last time he made a thinly-veiled threat, telling the district court, “Yo, take me back before
6
I snap on this mother.”3
The district court advised Freeberg that it viewed his actions as a delay tactic. And
when the district court attempted to bring the jury in, Freeberg yelled, “Take me back, bro.
Take me back. Just take me back. Take me back right now.” The district court ordered
Freeberg removed and deemed his actions to constitute a waiver of his right to be present
at trial. Then, because Freeberg was inconsistent and unclear with the district court about
whether or not he wanted to discharge his counsel, the district court ruled that Freeberg did
not knowingly and voluntarily discharge counsel, and ordered defense counsel to continue
representing Freeberg. Finally, after arriving at 8:00 a.m. and waiting for over three hours,
the jury was brought in and jury selection began.
As trial moved forward, the district court kept Freeberg informed about what was
happening in his tr ial by directing the bailiff to update Freeberg, and to inquire whether
Freeberg wished to participate in the trial. Over lunch on day one, a bailiff asked Freeberg
if he wanted to return to court for the remainder of jury selection; Freeberg said no. Later
that same day, the bailiff informed Freeberg that opening statements would begin soon and
asked if he wanted to participate; Freeberg again declined. At the end of day one, the
district court informed the attorneys that the next day Freeberg would be brought over to
the courthouse in street clothing and given time to meet with his counsel. In weighing the
options, Freeberg’s defense counsel recommended that Freeberg be allowed to waive his

3 Freeberg was examined under Rule 20 and found competent to stand trial because he was
able to “rationally consult with counsel,” “understand the proceedings,” and “participate in
the defense.” Minn. R. Crim. P. 20.01, subd. 2.
7
right to be present rather than having Freeberg shackled to compel his attendance before
the jury.
On the second day of trial, Freeberg again declined to attend, and told the bailiff
that he would physically resist anyone forcing him to attend. Defense counsel also reported
that Freeberg would not meet with her. Over the lunch break, a bailiff reported that
Freeberg did not want to attend trial or meet with his counsel.
For day three of trial, Freeberg was brought in to court outside the presence of the
jury, and he again tried to fire his counsel. After a brief exchange with the district court,
Freeberg said, “I am not waiving nothing. She’s not representing me. She’s fired once
again, man. She’s not representing me at all. She’s not my attorney right now.” He then
began to walk toward the door, and the district court deemed Freeberg to have waived his
right to attend trial by conduct. After getting the input of the prosecutor and defense
counsel, the district court decided not to discharge Freeberg’s counsel. Following the lunch
break, Freeberg was again brought before the district court outside the presence of the jury.
At that time, Freeberg apologized for his outburst on the first day of trial, waived his right
to be present for the rest of that day’s testimony, and expressed his desire to be present for
the jury instruction conference and for the last day of trial . Freeberg was present at the
jury instruction conference, and for all proceedings thereafter, which included his trial
testimony before the jury.
Conviction and Sentencing
The jury found Freeberg guilty of a pattern of stalking conduct related to M.S. ,
Minn. Stat. § 609.749, subd. 5 (a) (2014). The pattern included guilty verdicts for: five
8
counts of violating a harassment restraining order , Minn. S tat. § 609.748, subd. 6( d)
(2014); two counts of felony domestic assault, Minn. Stat. § 609.2242, subd. 4 (2014); one
count of domestic assault by strangulation , Minn. Stat. § 609.2247, subd. 2 (2014); one
count of threats of violence, Minn. Stat. § 609.713, subd. 1 (2014); and one count of third-
degree criminal sexual conduct , Minn. Stat. § 609.344, subd. 1(b) (2014). The jury also
found Freeberg guilty of two counts of violating a harassment restraining order related to
M.S.’s mother, and another count of violating a harassment r estraining order related to
M.S.4
At the sentencing hearing, Freeberg argued for a downward dispositional departure
based on his fetal alcohol spectrum disorder , ADHD, and bipolar reactive attachment
disorder. The state responded by summarizing the effects that Freeberg’s conduct had on
M.S. and her mother : the repeated and knowing conduct by Freeberg over the entire
summer, the continued phone calls to M.S. as his case approached trial, and the violent
threats and use of violence against M.S. The state also argued that there were people there
for Freeberg when he was growing up; that he did not just fall through the cracks. The
district court denied the motion for a downward dispositional departure.
The district court sentenced Freeberg to 60 mon ths for the third-degree criminal

4 The first of the two harassment restraining order counts relating to M.S.’s mother was
charged as part of a pattern of stalking conduct, but Freeberg was only found guilty of one
act within the pattern and was thus acquitted of that pattern charge. The second of the
harassment restraining order counts relating to M.S.’s mother was separately charged from
the pattern, as was the final violation of a harassment restraining order charge related to
M.S.
9
sexual conduct count;5 21 months for the first harassment restraining order violation related
to M.S.’s mother, concurrent; 24 months for the non -pattern harassment restraining order
violation related to M.S., concurrent; and 12 months and a day for the second harassment
restraining order violation related to M.S.’s mother , consecutive to the criminal sexual
conduct count. In total, Freeberg was sentenced to serve 72 months and a day.
D E C I S I O N
I. Absence From Trial
Our court reviews the decision to proceed with trial in the absence of the defendant
for an abuse of discretion, and “will not disturb the [district] court’s factual findings unless
clearly erroneous.” State v. Cassidy, 567 N.W.2d 707, 709–10 (Minn. 1997).
Criminal defendants have a Sixth Amendment right to be present in the courtroom
because each defendant has the right to confront the witnesses or evidence against him.
Illinois v. Allen , 397 U.S. 337, 338, 90 S. Ct. 1057, 1058 (1970). The Fourteenth
Amendment due process clause also gives each defendant the “right to be present in his
own person whenever his presence has a relation, reasonably substantial, to the fullness of
his opportunity to defend against the charge.” Kentucky v. Stincer, 482 U.S. 730, 745, 107
S. Ct. 2658, 2667 (1987) (quot ation omitted) . In Minnesota, our Rules of Criminal
Procedure provide even greater protection by requiring the defendant’s presence at “every
stage of the trial,” from jury selection until sentencing. Minn. R. Crim. P. 26.03, subd.
1(1); Cassidy, 567 N.W.2d at 709.

5 Freeberg could only be sentenced on one count within the pattern of stalking conduct.
Minn. Stat. § 609.035, subd. 1 (2014); State v. Jones, 848 N.W.2d 528, 534 (Minn. 2014).
10
However, the defendant can waive the right to be present. Cassidy, 567 N.W.2d at
709. The rules allow the district court to proce ed without the defendant if he is “absent
without justification after the trial starts.” Minn. R. Crim. P. 26.03, subd. 1(2)(1). This is
because we do not allow defendants to “take advantage of their own willful choice to defeat
the ends of justice.” State v. Worthy , 583 N.W.2d 270, 277 –78 (Minn. 1998); see also
Allen, 397 U.S. at 343, 90 S. Ct. at 1061 (“[T]rial judges confronted with disruptive,
contumacious, stubbornly defiant defendants must be given sufficient discretion to meet
the circumstances of each case.”). But the right to be present cannot be “easily waived.”
State v. Grey, 256 N.W.2d 74, 76 (Minn. 1977). In order to proceed without the defendant,
“it must be clear that the defendant himself is intentionally abandoning a known right.” Id.
(citation omitted). Whether a defendant has waived his right to be present is based “upon
the particular facts and circumstances surrounding the case, including the background,
experience, and conduct of the accused.” State v. Richards, 456 N.W.2d 260, 264 (Minn.
1990) (quotation omitted).
And, “[t]he defendant has the [heavy] burden to prove that his absence was
involuntary. . . . [B]ecause [o]ur judicial system could not function if defendants were
allowed to pick and ch oose when to show up for trial .” State v. Finnegan , 784 N.W.2d
243, 247 –48 (Minn. 2010) (quot ation omitted ). If the defendant is absent without
justification, trial proceeds without the defendant. Id. at 248.
The district court did not abuse its discretion in determining that Freebe rg was
absent without justification. Freeberg repeatedly and unequivocally stated that he did not
want to be present at trial after being advised by the district court that he was expected to
11
be there and had the right to be present. When the district court attempted to bring the jury
in to begin jury selection, Freeberg began yelling, demanding that he be removed from the
courtroom. Based on Freeberg’s repeated denials that trial was going to begin that day,
and his repeated statements that he did not want to be present, the district court did not err
in finding that Freeberg’s tactics were an attempt to delay trial, and did not abuse its
discretion in deeming Freeberg’s conduct a waiver of his right to be present at trial. See
Worthy, 583 N.W.2d at 277 (holding district court di d not abuse its discretion when
defendants “stated unequivocally that they did not wish to stay in the courtroom during
trial,” and confirmed their refusal to be present on several occasions). The district court
made repeated attempts to involve Freeberg in the trial, and once Freeberg expressed a
desire to be present, he was brought into the courtroom.
Freeberg argues that his absence was justified because his counsel only met with
him once before trial. But that is not true. On multiple occasions, Freeberg himself
acknowledged to the district court that he met with his attorney before each court
appearance. And when Freeberg’s counsel wanted to meet with him to go over new
evidence disclosed by the state, or to discuss the possibility of stipulating to certain
elements to prevent his prior convictions being presented to the jury, Freeberg refu sed to
meet with his counsel. Even after the district court ordered Freeberg to meet with his
counsel and listen to new evidence turned over by the state, Freeberg still refused. All of
this occurred before the first day of trial, and when Freeberg re-raised the same issue at the
beginning of trial the district court did not err in finding Freeberg’s tactics were an attempt
to delay trial. See id. at 277–78 (affirming district court’s finding that defendants’ firing
12
of counsel and refus al to be present for trial were delay tactic s, and holding district court
did not abuse its discretion by conduc ting trial without defendants present); cf. Finnegan,
784 N.W.2d at 249 –52 (upholding district cou rt’s ruling that defendant was voluntarily
absent without justification when he took methamphetamine, overdosed, and as result was
absent from second day of trial).
Finally, Freeberg argues that he could not be absent without justification under rule
26.03 because the rule only allows a defendant to be deemed absent without justification
after trial starts, and his trial had not started. But this argument was rejected in State v.
Carse, 778 N.W.2d 361 (Minn. App. 2010) , review denied (Minn. Apr. 20, 2010 ). Rule
26.03 makes jury selection a part of trial, and Carse held—at least for the purpose of rule
26.03—that trial starts when the district court is prepared to begin voir dire and prospective
jurors are waiting to be brought into the courtroom. Minn. R. Crim. P. 26.03, subd. 1(1);
Carse, 778 N.W.2d at 369–70. Our holding in Carse was designed to prevent defendants
from manufacturing a rule 26.03 violation by refusing to be present for jury selection, and
then claiming any waiver was not valid because jury selection had not yet begun, when the
only reason that jury selection had not begun was the defendant’s own refusal to allow the
jury to enter the courtroom. Carse, 778 N.W.2d at 369–70.
Freeberg repeatedly told the district court that he did not want to be present for trial,
and attempted to prevent trial by being disruptive. The district court gave Freeberg every
opportunity to be present, even as the trial progressed, but properly did not allow Freeberg
to prevent the administration of justice. Accordingly, the district court did not abuse its
13
discretion in deeming that Freeberg’s words and actions made him absent without
justification, and conducting most of the trial without him.
II. Sentencing
The district court is afforded “great discretion in the imposition of sentences,” and
this court will not reverse a sentencing decision absent an abuse of discretion. State v.
Soto, 855 N.W.2d 303, 307 –08 (Minn. 2014) (quot ation omitted). We rarely reverse the
imposition of a sentence that is within the presumptive range. State v. Delk, 781 N.W.2d
426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010). And , appellate courts
“will not disturb a district court’s decision to impose permissive cons ecutive sentences
absent a clear abuse of discretion.” State v. Yang, 774 N.W.2d 539, 563 (Minn. 2009). The
district court abuses its discretion if consecutive sentences exaggerate the defendant’s
criminality. Carpenter v. State , 6 74 N.W.2d 184, 189 (Mi nn. 2004) . “In determining
whether a consecutive sentence unfairly exaggerates a defendant’s criminality, [courts] are
guided by past sentences received by other offenders for similar offenses.” Id.
Freeberg argues that imposing a consecutive sentence f or one of his harassment
restraining order violations , resulting in a 72 months and a day sentence, unfairly
exaggerated his criminality. But consecutive sentences for these offenses were permissive
within the guidelines, making the district court’s sente nce presumptively within its
discretion. Minn. Sent. Guidelines 2.F.2.a(1)(i)(a) (Supp. 2015) (permitting a consecutive
sentence if both offenses are listed in Section 6); id. at 6 (Supp. 2015) (listing both
Freeberg’s harassment restraining order violation, Minn. Stat. § 609.748, subd. 6(d), and
his third-degree criminal sexual conduct violation, Minn. Stat. § 609.344, subd. 1, in
14
section 6). Moreover, the district court could have sentenced Freeberg to almost the exact
same sentence by imp osing a top of the box , 72-month sentence, for the criminal sexual
conduct count, and sentencing the harassment restraining order count concurrently . See
Minn. Sent. Guidelines 4.B (Supp. 2015) (showing presumptive sentence of 60 months and
range of 51–72 months for sex offense of severity D with criminal history score of 2). The
fact that the district court could have imposed almost the exact same sentence through
different avenues weighs strongly against the argument that Freeberg’s sentences
exaggerate his criminality.
And, Freeberg cites no relevant cases which support his argument. He cites State v.
Goulette, 442 N.W.2d 793, 794 (Minn. 1989), but that case involved a single robbery
incident where the defendant was charged with one count of aggrava ted robbery for each
victim, and the district court imposed consecutive sentences for each count at the maximum
length within the guidelines. Even then, while the supreme court concluded that the total
sentence unfairly exaggerated the criminality of the defendant’s conduct, the reduction still
imposed a longer sentence than if it had imposed three of the five sentences consecutively.
Id. at 795; cf. State v. Norris , 428 N.W.2d 61, 70–71 (Minn. 1988) (holding that five 60 -
month sentences for assault runn ing consecutive with each other and with life
imprisonment sentence for first-degree murder, exaggerated criminality, but only reducing
three of five assault sentences to run concurrently).
Freeberg does not cite any Minnesota cases which discuss a defenda nt’s sentences
for criminal sexual conduct and a harassment restraining order violation. However, in the
rare cases in which an opinion has modified a consecutive sentence for exaggerating the
15
criminality of the conduct involved, the district court had imposed more than two sentences
consecutively, and the reduction still imposed at least two of the sentences consecutively.
See State v. Poole, 499 N.W.2d 31, 36 (Minn. 1993) (affirming appe llate court’s decision
reducing defendant’s six consecutive sente nces for criminal sexual conduct to three
consecutive sentences); see also Norris , 428 N.W.2d at 71 (imposing two of five assault
sentences consecutive with each other and with life imprisonment sentence for first-degree
murder); cf. Goulette, 442 N.W.2d at 795 (reducing total sentence for unfairly exaggerating
defendant’s criminality, but imposing longer sentence through upward departure than
length of three consecutive sentences).
Finally, evidence of Freeberg’s fetal alcohol syndrome and his past life experiences
are not enough to show that the district court abused its sentencing discretion. Freeberg
presented both of those arguments to the district court in asking for a downward
dispositional departure and as a reason the district court should have im posed concurrent
sentences. We conclude that, based upon this record, the district court did not abuse its
discretion in denying Freeberg’s request for a downward dispositional departure on these
grounds.
For mental illness to mitigate against imposing c onsecutive sentences, “a
defendant’s impairment must be ‘extreme’ to the point that it deprives the defendant of
control over his actions.” State v. McLaughlin, 725 N.W.2d 703, 716 (Minn. 2007) . But
the record contains no evidence that Freeberg’s fetal alcohol syndrome is severe enough to
16
deprive him of control over his actions .6 See State v. Fardan , 773 N.W.2d 303, 3 22–23
(Minn. 2009) (determining defendant’s fetal alcoh ol syndrome did not constitute
mitigating factor in sentencing). And, Freeberg’s past life experiences , which included
abuse against him, also do not show that the district court abused its sentencing discretion
because any mistreatment of Freeberg was not perpetrated by the victims of his crimes.
See State v. Hennum , 441 N.W.2d 793, 801 (Minn. 1989) (emphasizing that appellate
court’s “reduction of district court’s sentence” is rarely appropriate, and reducing
defendant’s sentence only because victim had physically and mentally abused defendant
throughout their relationship).
The evidence supports the district court’s findings, and the district court did not
abuse its discretion in imposing a consecutive sentence for one of Freeberg’s harassment
restraining order violations.
Affirmed.

6 Freeberg also does not explain why his bipolar reactive disorder, attachment disorder, or
ADHD resulted in extreme mental impairment.