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This opinion will be unpublished and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
A17-0200

State of Minnesota,
Respondent,

vs.

Deirdre Elise Evavold,
Appellant.

Filed October 16, 2017
Affirmed
Connolly, Judge

Dakota County District Court
File No. 19HA-CR-15-4227

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

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

Deirdre Elise Evavold, St. Cloud, Minnesota (pro se appellant)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Schellhas,
Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Pro se appellant was convicted of six counts of deprivati on of parental/custodial
rights. She now argues that (1) the district court erre d in not instructing the jury on the
affirmative defense under Minn. Stat. § 609.26, subd. 2(1) (2012); (2) law enforcement and
the prosecution committed misconduct by tampering with the testimony of a witness;
(3) the prosecution committed misconduct by not providing appellant with all of the
discovery; and (4) she was deprived of her right to a fair trial due to judicial bias. We
affirm.
FACTS
Sandra Grazzini -Rucki and David Rucki were married and share five children
including the two children involved in this case: S.R. and G.R. Temporary custody of all
the children was given to the children’s paternal aunt on April 19, 2013 , by a court order.
Later that day, S .R. and G .R. were taken by their mother to appellant Deirdre Elise
Evavold’s home in St. Cloud. After several days , both S.R. and G.R. were taken by the
appellant and their mother to the residence of Doug and Gina Dahlen , where they stayed
for over two years before law enforcement agents discovered them.
Pro se a ppellant was charged with six counts of deprivation of parental/custodial
rights. During several pretrial hearings, appellant complained of not having all of the
discovery she was entitled to receive and asserted that the prosecution was engaged in an
illegal scheme of charging her money to reproduce and send discovery. While the district
court informed appellant several times throughout the pretrial hearings that she had other
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options to obtain discovery without incurring costs, she chose not to utilize any of these
options. Appellant, while being present for her jury trial, did not provide an opening
statement, cross -examine any witnesses, or provide any direct testimony from any
witnesses. The jury found appellant guilty of all six counts of deprivation of
parental/custodial rights.
D E C I S I O N
I. Did the district court err by not instructing the jury on the affirmative defense
provided in Minn. Stat. § 609.26, subd. 2(1)?

Appellant argues that she was wrongfully charged and convicted of six counts of
depriving another of custodial or parental rights under Minn. Stat. § 609.26 because there
is substantial evidence supporting the Minn. Stat. § 609.26, subd. 2(1) affirmative defense.1
Because appellant not only failed to provide notice to the prosecution of her intent to raise
any affirmative defenses but also unequivocally stated she was not r aising the affirmative
defense, appellant’s argument fails.
Individuals charged under Minn. Stat. § 609.26 have the option to assert the
affirmative defense contained in the statute. See Minn. Stat. § 609.26, subd. 2(1) (“It is an
affirmative defense if a person charged under subdivision 1 proves that: (1) the pe rson
reasonably believed the action taken was necessary to pro tect the child from physical or

1 To the extent that appellant is also arguing there was insufficient evidence to convict her
under Minn. Stat. § 609.26, we disagree. The record, reveals that the evidence (including
law enforcement testimony, the victim’s testimony, emails sent and received by appellant,
among other evidence ), when viewed in the light most favorable to the conviction, is
sufficient to allow the jury to reach the verdict it did. State v. Webb, 440 N.W.2d 426, 430
(Minn. 1989).
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sexual assault or substantial emotional harm.”) . However, having the ability to assert an
affirmative defense and asserting an affirmative defense are not the same thing. Appellant,
while having the right to assert her affirmative defense, failed to prov ide any notice to the
prosecution of her intent to raise any affirmative defenses , as required by Minn. R. Crim.
P. 9.02(5). Even if the rules did not require ap pellant to provide affirmative notice, her
argument still fails because she definitively told the district court “no” when asked whether
she intended to assert the affirmative defense during her trial.
The district court did not instruct the jury on the af firmative defense. Appellant
argues that failing to assert the affirmative defense is not dispositive as to whether the
affirmative defense can absolve her of criminal liability. We disagree. Regardless of
whether the evidence was or was not sufficient for the affirmative defense , a party who
fails to notify the prosecution of her potential affirmative defense, fails to raise that defense
even after being presented with a host of opportunities, and declines to submit any evidence
or develop the record through direct- or cross-examination in support of that defense is not
entitled to a jury instruction on it. See State v. Gustafson , 610 N.W.2d 314, 320 (Minn.
2000) (While it is true that district courts have the respo nsibility to ensure all es sential
instructions are given, that responsibility does not require the court to instruct the jury, sua
sponte, on affirmative defenses when they are not requested, raised, or argued).
II. Did the prosecutor commit misconduct by tampering with a witness?

Appellant argues that prima facie evidence of witness tampering exists in v iolation
of Minnesota’s witness-tampering statute. See Minn. Stat § 609.498 (2016). In support of
this claim, appellant asserts that S.R. told law enforcement that her father and aunt made
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her recant and presumably implies that the prosecution coerced S .R. into changing her
statement.
Because appellant never raised any witness -tampering issues involving S .R. with
the district court during or before trial, this issue is not properly before this court. Criminal
defendants forfeit their right to raise the issue of prosecutorial misconduct on appeal when
they fail to object or seek a curative instruction. State v. Torres, 632 N.W.2d 609, 617-18
(Minn. 2001). Without a timely objection, relief will only be granted in extreme cases
involving “unduly prejudicial” prosecutorial misconduct. State v. Whittaker, 568 N.W.2d
440, 450 (Minn. 1997). But we review unobjected -to prosecutorial misconduct under a
modified plain-error test. See State v. Ramsey, 721 N.W.2d 294, 302 (Minn. 2006) (“before
an appellate court reviews unobjected-to trial error, there must be (1) error, (2) that is plain,
(3) affects substantial rights.”).
Even if the issue we re properly preserved for this c ourt, appellant’s claim would
still fail. Appellant does not cite any evidence in the record that would tend to show that
S.R. was coerced into giving false statements by anyone , including the prosecution. 2 In
addition, S.R. testified at appellant’s trial, and appellant had the opportunity to ask her
these questions if she desired. She chose not to. Because appellant has not shown error, it
is unnecessary to address the other prongs of the plain error test.

2 Appellant does place in her addendum a copy of a retyped excerp t of a conversation
between Officer Kelli Coughlin and S.R., but this transcript does not appear in the record
and is not properly before the court. See Minn. R. Civ. App. P. 110 (stating documents
filed in district court, the ex hibits, and the transcript of the proceeding, if any, shall
constitute the record on appeal).
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III. Did the prosecutor commit misconduc t by allegedly failing to provide all
discovery to appellant?

Appellant asserts that the prosecution committed misconduct by not prov iding all
the discovery that it was required to produce. We disagree. There are five pieces of
discovery that appellant claims were not produced and that the prosecution was required to
produce, namely:
(1) Officer Kelli Coughlin’s prelimina ry audio recorded
statements of S.R. and G.R.;
(2) Preliminary audio statements of David Rucki, Tammy
Love, Rich Hakanson, Loralie Mu solf, Kelli Coughlin, Jim
Dronen, and Deputy U.S. Marshal Matthew Palmer (including
corresponding audio and video with a report);
(3) Stearns County evidence (i.e., surveillance of residence by
David Rucki and private, criminal investigative data for
Christian Fox);
(4) Blu-ray disc which contained reports from the Minnesota
Bureau of Criminal Apprehension;
(5) Child Protective Services documents from 2015.

As a threshold matter, many of the pieces of evidence that appellant describes above
were not pro perly preserved for the record. “[A] party seeking review has a duty to see
that the appellate court is presented with a record which is sufficient to show the alleged
errors and all matters necessary to consider the questions presented.” State v. Carlson, 281
Minn. 564, 566, 161 N.W.2d 38, 40 (1968); State v. Taylor , 650 N.W.2d 190, 204 n. 12
(Minn. 2002) (“On appeal, the appellant is responsible for providing th e court with an
adequate record ”). In examining appellant’s objections in the record, appellant only
specifically names item No. 4 as a piece of evidence that she had not received.
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“The state’s obligations in discovery derive from the Minnesota Rules of Criminal
Procedure and also from the constitutional guarantees of due process.” State v. Hunt, 615
N.W.2d 294, 298 (Minn. 2000). Specifically, Minn. R. Crim. P. 9.01, subd. 1, requires the
prosecuting attorney to allow the defense access at any reasonable time to all matters within
the prosecutor’s possession or control that relate to the cas e. Minn. R. Crim. P. 9.01,
subd. 1.
The prosecution was unable to make a copy of the Blu -ray disc.3 However, the
prosecution complied with Minn. R. Crim. P. 9.01, subd. 1 by making the disc available
for appellant’s review in the Dakota County Attorney’s facilities. Appellant’s refusal to
examine the evidence at the Dakota County Attorney’s facilities was her choice , but this
choice now precludes her from arguing that she did not receive access to this discovery.
Appellant’s claim regarding the other four pieces of evidence, assuming these pieces
of discovery were preserved in the record, also fails. We review unobjected-to trial error
under the plain-error standard. See Ramsey, 721 N.W.2d at 302.
Concerning t he discovery appellant describes in paragraph one, the prosecution
states there were no preliminary audio interviews conducted on the girls at any time. While
one police interview of S.R. eventually did take place, this interview was sent to appellant
in late August.

3 The Blu-ray disc contained emails from a search of the computer of an attorney involved
with the original disappearance of S.R. and G.R. that was performed by t he Minnesota
Bureau of Criminal Apprehension.
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Concerning the discovery raised in paragraph two, the prosecution notes in its brief
that there were no interviews conducted of Rucki, Love, or Musolf. The prosecution also
notes that the other individuals in paragraph two are all law enfor cement officers who
would not give “preliminary audio statements.” Thus, beyond appellant’s mere assertion,
it appears that the discovery appellant is requesting in paragraph two does not exist.
Further, appellant provides no factual support that recorde d interviews of anyone in
paragraph two exist, which is her responsibility on appeal. See Carlson, 281 Minn. 564 at
566, 161 N.W.2d at 40.
Concerning the discovery raised in paragraph three, appellant argues that under
Minn. R. Crim. P. 9.01, subd. 2, the prosecution is required to aid her in retrieving “Stearns
County evidence.” Appellant overstates the state’s discovery obligations in a criminal
case. Typically, the state’s discovery obligation only applies to evidence that is actually in
the state’s possession. See Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 1001
(1987). “In contrast to the civil rules, the criminal rules allow only limited discovery[.]”
State v. Deal, 740 N.W.2d 755, 763 (Minn. 2007). Under the criminal procedure rules, a
prosecutor is required to disclose, without a court order, “all matters within the prosecutor’s
possession or control that relate to the case[.]” Minn. R. Crim. P. 9.01, subd. 1. However,
a defendant may file a motion with the district court to order the prosecution to assist the
defendant in obtaining access to matters in the possession of a governmental agency, but
not in the prosecutor’s control. Minn. R. Crim. P. 9.01, subd. 2(1). Simply put, rule 9 does
not require the state to disclose items the state does not possess. See State v. Schmid, 487
N.W.2d 539, 543 (Minn. App. 1992). This is especially true if those records are not in the
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control of the state, no motion has been made under Mi nn. R. Crim. P. 9.01, subd. 2(1),
and there is no identifying information to inform the prosecution of what records are even
being requested.
Concerning the discovery items raised in the fifth paragraph of appellant’s brief, the
child-protection records she requests also do not appear to be in the possession of the
prosecution. If appellant, acting as her own attorney, believed those records to be of a
pertinent nature to her defense, then her proper recourse would be to file a Paradee motion
seeking in camera review of the relevant child -protection records under Minn. R. Crim.
9.03, subd. 6. See State v. Paradee, 403 N.W.2d 640 (Minn. 1987). Appellant’s failure to
do this does not equate to prosecutorial misconduct. Because she has not established error,
it is not necessary to address the other prongs of the plain error test. See State v. Brown ,
815 N.W.2d 609, 620 (Minn. 2012).
IV. Did the district court deprive the defendant of the right to a fair trial due to
judicial bias and questionable impartiality?

For her last issue on appeal, appellant alleges that the district court failed to disclose
its conflict of interest and was unfairly biased against her. The Minnesota Rules of
Criminal Procedure mandate that a judge not preside at a trial or other proc eeding if
disqualified under the Code of Judicial Conduct. Minn. R. Crim. P. 26.30, subd. 14(3).
Appellant alleges a violation of rule 2.11(A) of the Minn. Code of Judicial Conduct,4 which
states that “[a] judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned [.]” Whether a judge has violated the

4 Appellant cites this rule as Canon 3E in her brief.
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Code of Judicial Conduct is a que stion of law, which we review de novo. State v. Pratt,
813 N.W.2d 868, 877 (Minn. 2012). However, because appellant did not object to the
district court judge presiding over her bench trial, we review this new objection on appeal
under the plain-error standard. See State v. Schlienz, 774 N.W.2d 361, 365 (Minn. 2009).
Here, appellant asserts that the district court judge was biased during this proceeding
because she presided over a preliminary hearing that involved a disorderly conduct charge
against one of the appellant’s victims in 2009. Appellant also points out that while the
2009 case was set for trial, “the defense filed a motion to dismiss for lack of probable
cause . . . that motion was granted without a hearing by [the district court] and the case
was abruptly thrown out.” Based on the district court’s register of actions, appellant is
mistaken. In reality, both parties filed memoranda in support of their respective positions,
and the district court decided the motion to dismiss on the merits. We see no evidence of
bias. Appellant has not established error and we need not consider the other prongs of the
plain-error test. See Brown, 815 N.W.2d at 620.
Affirmed.