State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0137

State of Minnesota,
Respondent,

vs.

DeAntae Demond Davis,
Appellant.

Filed December 24, 2018
Affirmed
Halbrooks, Judge

Stearns County District Court
File No. 73-CR-15-10453

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Bratvold, Judge; and
Klaphake, Judge.

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

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U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges his conviction of being an ineligible person in possession of a
firearm, arguing that (1) the district court erred by denying his motion to suppress evidence
discovered during a search of his bedroom, (2) he was deprived of his right to a fair trial,
and (3) the district court abused its discretion by denying his motion for a downward
dispositional departure. We affirm.
FACTS
On October 14, 2015, T.B. contacted the St. Cloud Police Department to report that
he had been robbed at gunpoint the previous night. He provided a physical description of
the robber, and law enforcement determined that the description matched that of appellant
DeAntae Demond Davis. The following day, Officer Matthew Pribnow of the St. Cloud
Police Department learned that there was probable cause to arrest Davis for the robbery.
He went to Davis’s address, but Davis was not home. His mother’s fiancé, J.J., answered
the door and signed a form consenting to a search of the residence.
Officer Pribnow was unable to locate the firearm used during the robbery. But he
discovered a photo strip in Davis’s bedroom that depicted Davis holding a firearm that was
consistent with the description of the one used during the robbery. Officer Pribnow sent
the photograph to Nancy Lang, an investigator with the St. Cloud Police Department.
Investigator Lang observed that the photo strip listed a web address at which a video could
be viewed. She ultimately obtained a video recorded on October 12, 2015 , at a mall in

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St. Cloud. In the video, Davis is holding the firearm and points it at the camera. Davis is
ineligible to possess a firearm based on a prior juvenile adjudication for a crime of violence.
Davis was charged with being an ineligible person in possession of a firearm and
certified as an adult. Davis moved to suppress the evidence discovered during the search,
arguing that J.J. did not have authority to consent to the search of his bedroom. Following
a hearing, the district court denied the motion. At the conclusion of trial, t he jury found
Davis guilty. Davis moved for a downward durational or dispositional departure. The
district court d enied the motion and imposed a presumptive 60 -month sentence. This
appeal follows.
D E C I S I O N
I.
When reviewing a pretrial order on a motion to suppress evidence, we independently
review the facts and determine, as a matter of law, whether the district court erred in
denying the motion. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). When the facts are
not in dispute, our review is de novo, and we must determine whether the police articulated
an adequate basis for the search or seizure. Id. We will not reverse the district court’s
factual findings unless they are clearly erroneous. State v. Ruoho, 685 N.W.2d 451, 458
(Minn. App. 2004), review denied (Minn. Nov. 16, 2004).
The Fourth Amendment protects against unreasonable searches and seizures. State
v. Stavish, 868 N.W.2d 670, 674-75 (Minn. 2015). A search is presumptively unreasonable
when police do not have a warrant. Id. at 675. Evidence collected through an illegal search
may be excluded. State v. Lindquist, 869 N.W.2d 863, 868 (Minn. 2015). A warrantless

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search is reasonable only if it falls within a defined exception to the warrant requirement.
Stavish, 868 N.W.2d at 675. Consent is an exception to the warrant requirement. State v.
Diede, 795 N.W.2d 836, 846 (Minn. 2011).
Davis argues that J.J.’s conse nt to search Davis’s bedroom was invalid , and
therefore the district court erred by denying his motion to suppress the evidence obtained
during the search. He argues that J.J. did not have actual or apparent authority to consent
to the search of his bedro om. A third party has the authority to consent to a search if the
person “possessed common authority over or other sufficient relationship to the premises.”
United States v. Matlock , 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974). If, based on the
facts a vailable, the officer objectively believes the third party has authority over the
premises and could give consent, then the consent is valid. State v. Thompson, 578 N.W.2d
734, 740 (Minn. 1998). Whether actual or apparent authority exists is a legal question that
we review de novo. State v. Dotson, 900 N.W.2d 445, 450 (Minn. App. 2017).
Here, J.J. answered the door when the police arrived. J.J. indicated that both he and
Davis lived at the residence and identified himself as the fiancé of Davis’s mot her. The
police asked if he would consent to a search of the property , and J.J. agreed. He read the
consent-to-search form, indicated that he did not have any additional questions, and signed
the form. He then led the officers to Davis’s bedroom and aga in gave them permission to
search it. Under these circumstances, it was objectively reasonable for Officer Pribnow to
believe that J.J. had authority to consent to the search.
The Minnesota Supreme Court has previously held that a parent may validly consent
to a search of their adult child’s room if the child still lived in the parent’s home. State v.

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Schotl, 182 N.W.2d 878, 879-80 (Minn. 1971); State v. Kinderman, 136 N.W.2d 577, 580
(Minn. 1965). Davis argues that these cases are distinguishable beca use J.J. was not his
parent or stepparent, but rather the fiancé of his mother. But as noted above, a third party
may have the authority to consent if they possess a “sufficient relationship to the premises.”
Matlock, 415 U.S. at 171, 94 S. Ct. at 993. J.J. and Davis both lived at the residence, which
was leased in J.J.’s name, and J.J. was engaged to Davis’s mother. And unlike the children
in Schotl and Kinderman, Davis was a minor at the time of the search. Accordingly, we
conclude that J.J. had a su fficient relationship to the premises to give him apparent
authority to consent to the search.
II.
Davis argues that the prosecutor committed prosecutorial misconduct by failing to
adequately prepare his witnesses. “The state has a duty to prepare its witnesses, prior to
testifying, to avoid inadmissible or prejudicial statements.” State v. McNeil, 658 N.W.2d
228, 232 (Minn. App. 2003). Improper testimony by a state’s witness may be considered
prosecutorial misconduct and justify reversal. State v. Mahkuk, 736 N.W.2d 675, 689 -90
(Minn. 2007). We are “much more likely to find prejudicial misconduct when the state
intentionally elicits impermissible testimony.” McNeil, 658 N.W.2d at 232. “[A]n
intentional elicitation of impermissible testimony, altho ugh erroneous, will warrant
reversal only when it is likely that the impermissible testimony substantially weighed on
the jury’s decision.” Id.
Davis argues that he was deprived of a fair trial based on improper testimony from
one of the state’s witnesses . At trial, the prosecutor called several witnesses to testify as

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to how it determined that the firearm in the photo strip and video was real and not a replica.
David Sohm, a retired police officer, testified about his experience with the model of
firearm in the video. He testified that he was 99% certain that the firearm was real. During
cross-examination, he was questioned about the possibility that he was wrong. He testified
that he was “99 percent certain that this is a real firearm. Is there a po tential one percent?
There is always that potential. But I’m certain beyond a reasonable doubt that this is a
gun.” Defense counsel objected to Sohm’s statement that he was certain beyond a
reasonable doubt that the firearm was real. The district court sustained the objection and
instructed the jury to disregard the statement.
We discern no prosecutorial misconduct. Sohm’s statement was in response to a
question during cross-examination; it was not elicited by the prosecutor. Sohm made the
statement after being pressed by defense counsel about the possibility that his
determination that the firearm was real was incorrect. And as noted, we will reverse a
conviction only if it determines the statement “substantially weighed on the jury’s
decision.” Id. The district court immediately ordered the jury to disregard the statement.
We presume that the jurors follow the district court’s instruction and that curative
instructions are effective. State v. Gatson, 801 N.W.2d 134, 151 (Minn. 2011).
Moreover, the state presented extensive testimony to support its assertion that the
firearm was real. Dan iel Trautman, an officer with the St. Cloud Police Department,
similarly testified that he was 98% certain that the firearm was real. Investigator Lang
testified that during the investigation she examined real and replica firearms. She indicated
that the firearm in the video had features that were consistent with real firearms but

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inconsistent with replicas. Fina lly, the officers identified the firearm as a Springfield
Armory XD-S .45 caliber handgun. Sohm testified that Springfield Armory does not make
a replica of that model. Accordingly, it is unlikely that the improper statement substantially
influenced the jury’s decision.
III.
The district court has broad discretion in sentencing and we will not interfere with
“the sentencing court’s exercise of discretion, as long as the record shows the sentencing
court carefully evaluated all the testimony and inform ation presented before making a
determination.” State v. Van Ruler, 378 N.W.2d 77, 81 (Minn. App. 1985). A district court
may impose a dispositional departure if the defendant is particularly amenable to treatment
in a probationary setting. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Factors relevant
in determining if a defendant is particularly amenable to treatment in a probationary setting
include “the defendant’s age, his prior record, his remorse, his cooperation, his attitude
while in court, and the support of friends and/or family.” Id.
A district court may depart from the presumptive sentencing guidelines only if
substantial and compelling circumstances warrant doing so. State v. Cameron, 370 N.W.2d
486, 487 (Minn. App. 1985), review denie d (Minn. Aug. 29, 1985). “Substantial and
compelling circumstances are those that make a case atypical.” State v. Walker , 913
N.W.2d 463, 468 (Minn. App. 2018). Even if substantial and compelling circumstances
are present, a district court is not required to depart. Id. We will reverse a district court’s
refusal to depart only in a “rare” case. Id.

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Davis argues that the district court abused its discretion by denying his motion for
a dow nward dispositional departure .1 He argues that he is particul arly amenable to
probation and that his age and traumatic background warrant a dispositional departure. He
argues that he is on ly 19 and that he has demonstrated “a capacity for positive change”
throughout the proceedings. He also argues that he had a tr aumatic childhood, including
losing his father and a stepfather figure, and his mother being imprisoned. He argues that,
because he “satisfied several factors” that support a dispositional departure, this court
should reverse his guidelines sentence and impose a probationary sentence.
But a district court is not required to depart even when it finds that some factors
support a departure . State v. Olson , 765 N.W.2 d 662, 664 -65 (Minn. App. 2009). And
other factors weighed against granting a dispositional departure. As the district court noted,
Davis has an extensive juvenile record, and although he received various services while in
the juvenile -justice system, he continued to commit crimes. Davis was designated for
prosecution as an extended-jurisdiction juvenile (EJJ) in two cases, but had his EJJ status
revoked and an adult sentence imposed in both cases. On this record, the district court did
not abuse its discretion by imposing a guidelines sentence.
Affirmed.

1 Davis does not appeal the denial of his motion for a downward durational departure.