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This opinion will be unpublished and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
A17-0808

State of Minnesota,
Respondent,

vs.

Phoebus Phaeton Apollo,
Appellant.

Filed May 7, 2018
Affirmed
Reyes, Judge

Ramsey County District Court
File No. 62-CR-16-5705

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

John Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Reilly, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges his conviction of felony domestic assau lt, arguing that the
district court (1) committed reversible error by instructing the jury that appellant had a duty
2
to retreat if reasonably possible before acting in self-defense and (2) abused its discretion
by denying discovery of the victim’s medical records after applying an improper
evidentiary standard for in camera review of the records.1 We affirm.
FACTS
The following facts were established at the jury trial held on January 26 and 27,
2017. Appellant Phoebus Phaeton Apollo a nd L.L. began dating in 2016. During their
relationship, appellant and L.L. were homeless and stayed in shelters. L.L. left appellant a
few times because of his controlling behavior, but later returned to the relationship.
On August 1, 2016, appellant and L.L. re nted a room at a mo tel in St. Paul to
celebrate their anniversary, where they spent the night. The next morning, appellant paid
to rent the room for a second ni ght. They began having sex that morning, but L.L. told
appellant to stop because he was being too rough and went to use the bathroom. Appellant
followed L.L., called her names, and then shov ed her. L.L. shoved him back. Appellant
swung at L.L. but missed. Appellant and L.L. then began punching each other.
Appellant and L.L. st opped fighting and briefly separated. L.L. then told appellant
that she was leaving him. In response, appellant approached L.L., punched her in the face
and on the head, and told her that he was going to knock her out.

1 We have reviewed appellant’s supplementa l pro se brief and can not discern any legal
arguments, nor does appellant c ite any caselaw or other auth orities. Accordingly, we
decline to respond. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App.
1997) (“An assignment of error based on mere assertion and not supported by any argument
or authorities in appellant’s brief is waived and will not be consid ered on appeal unless
prejudicial error is obvious on mere inspection.”) (quotation omitted).
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The fighting continued, and at some poi nt L.L. grabbed a box cutter. Appellant
positioned himself in front of the doorway to prevent L.L. from exiting the motel room.
When she attempted to use the door to leave, appellant lunged at her and she slashed at him
twice with the box cutter, cutti ng appellant’s hand and arm. Appellant then removed the
phone from the wall and continued to fight L.L. The motel manager heard the commotion
and knocked on the room door. Appellant open ed the door. L.L. told the manager, “Call
911.” The manager then called the police.
The responding police officers entered th e motel room and arrested appellant. The
officers found L.L. in the room naked and crying. They observed a large laceration, along
with bleeding and bruising, inside L.L.’s lower lip. Appellant sustained lacerations on his
finger and on his right forearm, which were treated after his arrest.
Respondent State of Minnesota charged appe llant with one count of felony domestic
assault in violation of Minn. Stat. § 609.2242, subd. 4 (2016), due to his prior convictions
of qualified domestic-violence-related offenses. Appellant moved for discovery of L.L.’s
medical records that would rev eal the existence and extent of L.L.’s “flashbacks,” which
would be the basis of his defense theory that appellant acted in self-defense in response to
L.L.’s violent reaction from a flashback that day. The district court reviewed L.L.’s
medical records in camera, determined that they did not contain material information, and
denied appellant’s request for disclosure.
The jury found appellant guilty of the charged offense. The district court convicted
and sentenced appellant to 33 months in prison. This appeal follows.

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D E C I S I O N
I. The district court did not commit rev ersible error in its jury instruction on
self-defense.

Appellant argues that the district court committed reversible error by instructing the
jury that appellant’s claim of self-defense “includes the duty to retreat or avoid the danger
if reasonably possible” because the rented motel room was his home or dwelling in which
there is no duty to retreat. Appellant’s argument lacks merit.
The district court has broad discre tion to craft jury instructions. State v. Devens ,
852 N.W.2d 255, 257 (Minn. 2014 ). “But a jury instruction is erroneous if it materially
misstates the law.” Id. Generally, a defendant’s failure to object to jury instructions at trial
constitutes a waiver of his right to challenge them on appeal. State v. Cross, 577 N.W.2d
721, 726 (Minn. 1998). However, we may review unobjected-to jury instructions for plain
error. State v. Crowsbreast , 629 N.W.2d 433, 437 (Minn. 2001); see Minn. R. Crim. P.
31.02. Because appellant did not object to the district court’s jury instructions on self-
defense at trial, we will review for plain error.
Under the plain-error test, appellant must s how (1) an error, (2) that is plain, and
(3) that affects the defendant’s substantial rights. Crowsbreast, 629 N.W.2d at 437. “An
error is plain if it is clear or obvious under current law . . . , [meaning] it contravenes case
law, rule, or a standard of conduct.” State v. Hollins, 765 N.W.2d 125, 133 (Minn. App.
2009) (citation and quotation omitted). An a lleged error contravenes caselaw only if the
issue has been “conclusively resolved.” Id. (quoting State v. Jones, 753 N.W.2d 677, 689
(Minn. 2008)). If all prongs of the three-prong test are met, “we may correct the error only
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if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
Crowsbreast, 629 N.W.2d at 437. (quotation omitted). If any prong is not met, we need
not analyze the other prongs. See id. at 438.
In certain circumstances, a person may us e reasonable force when acting in self-
defense. Minn. Stat. § 609.06, subd. 1(2) (2016); see State v. Radke, 821 N.W.2d 316, 324
(Minn. 2012) (identifying the required elements of a valid self-defense claim). In general,
the law requires that a person “retreat if reasonably possible when acting in self-defense.”
State v. Glowacki, 630 N.W.2d 392, 399 (Minn. 2001 ). However, in Mi nnesota, “[t]here
is no duty to retreat from one’s own home wh en acting in self-defense in the home,
regardless of whether the aggressor is a co-resident . . . .” Id. at 393.
Appellant argues that the evidence shows that the motel room was his home under
the reasoning of State v. Devens , which appellant contends established a framework for
determining whether a particular location qualifies as a person’s home for self-defense. In
Devens, the Minnesota Supreme Court declined to extend the castle doctrine, which refers
to the concept that a person need not retreat from his home before acting in self-defense,
to the hallway outside the defendant’s apar tment “[b]ecause [the defendant] did not
exercise exclusive . . . possession and control over the [area].” 852 N.W.2d at 258 n.4,
259.
We observe that appellant is arguing that the district court should have applied the
reasoning of Devens sua sponte, despite appellant never raising this argument to the district
court and despite Devens not addressing whether a motel room may qualify as a home for
self-defense. On appeal, our re view of unobjected-to jury inst ructions is limited to plain
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error. Because appellant concedes no Minneso ta case holds that a temporary motel room
may qualify as one’s home for self-defense, the issue has not been “conclusively resolved,”
and we decline appellant’s invitation to go beyond the scope of our review. See Hollins,
765 N.W.2d at 133; see also State v. Kelley, 832 N.W.2d 447, 456 (Minn. App. 2013), aff'd
on other grounds , 855 N.W.2d 269 (Minn. 2014) (noti ng this court’s role as “an error-
correcting court”). Therefore, the alleged erro r is not plain because it is neither clear nor
obvious under existing law. See Hollins, 765 N.W.2d at 133.
Because appellant has not met his burden of proving plain error, we conclude that
the district court did not commit reversible error by instructing the jury that appellant had
a duty to retreat if reasonably possible before acting in self-defense.
II. The district court did not abuse it s discretion in determining, after in camera
review, that the medical records did not contain any material information.

Appellant argues that the district court abused its discretion by applying an improper
evidentiary standard for in camera review of L.L.’s medical records and in determining
that the records did not contain any material information. Specifically, appellant argues
that the district court erred in reviewing the records under an “exculpatory standard” rather
than a “relevancy standard.” We disagree.
The district court has “wide discretion in its discovery and ev identiary rulings.”
State v. Wildenberg, 573 N.W.2d 692, 696 (Minn. 1998). However, the defendant’s Sixth
Amendment right to confront witnesses “o perates as a limit on that discretion.” State v.
Evans, 756 N.W.2d 854, 871 (Minn. 2008). “O n appeal, we review the limits placed by
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the district court on the rele ase and use of protected record s for an abuse of discretion.”
State v. Hokanson, 821 N.W.2d 340, 349 (Minn. 2012).
“A crime victim’s past medical records ar e generally protected from disclosure by
the physician-patient privilege.” State v. Kutchara, 350 N.W.2d 924, 926 (Minn. 1984);
see Minn. Stat. § 595.02, subd. 1( d), (g) (2016). “However, the medical privilege . . .
sometimes must give way to the defendant’s right to confront his accusers.” Id.
“When a criminal defendant requests [protected] records . . . the district court may
screen the confidential records in camera to balance the right of the defendant to prepare
and present a defense against the rights of victims and witnesses to privacy.” Hokanson,
821 N.W.2d at 349 (applying State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987)). To
obtain in camera review of protected information, th e defendant must make a “plausible
showing that the information sought would be both material and favorable to his defense.”
Id. (quotation omitted). When conducting in camera review, the district court is tasked
with reviewing the protected information for “a ll relevant evidence that might help [the
defendant’s] defense.” Paradee, 403 N.W.2d at 642.
Here, the district court reviewed L.L.’s medical records “in camera for all relevant
evidence that might help [the] defense,” a nd found that “the documents reviewed are
neither probative nor ex culpatory.” Although Paradee does not mentio n “exculpatory”
evidence, the term generally refers to ev idence “that tends to negate or reduce the
defendant’s guilt.” See Minn. R. Crim. P. 9.01, subd. 1( 6). In other words, exculpatory
evidence is relevant evidence that might help the defense. The te rminology used by the
district court is not inconsistent with the Paradee framework, and we conclude that the
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district court did not apply an improper evidentiary standard when conducting in camera
review of the medical records. Moreover, even if we were to conclude that the district
court improperly reviewed for exculpatory evidence, because the district court also found
that the documents were not probative, any error was not prejudicial. See Minn. R. Evid.
401 (defining relevant evidence as evidence probative of a material fact); Wildenberg, 573
N.W.2d at 698 (reviewing district c ourt’s exclusion of evidence following in camera
review for prejudicial error).
Appellant’s reliance on State v. Hummel does not compel a different conclusion.
483 N.W.2d 68 (Minn. 2012). In Hummel, the Minnesota Supreme Court considered
whether the district court, in denying in camera review of protected records, misinterpreted
caselaw and Minn. R. Crim. P. 9.03(6) “as requi ring an offer of proof that the material
sought was relevant and contained exculpatory information.” Id. at 72. The supreme court
concluded that the district court erred by rely ing on Rule 9.03(6), and not, as appellant
suggests, that it erred by reviewing for exculpatory information. Id. at 72 n.2. Moreover,
Hummel addressed the sufficiency of a party’s showing to establish the need for in camera
review, not the district court’s ev identiary standard when conducting in camera review.
See id.
We have obtained the medical records revi ewed by the district court. Based on our
independent review of the medical records, we conclude that the district court did not abuse
its discretion in determining that the records did not contain relevant evidence that might
help appellant’s defense and denying appellant access to the records.
Affirmed.