State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0489

State of Minnesota,
Respondent,

vs.

Jeffrey Alan Martin,
Appellant.

Filed February 8, 2021
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Benton County District Court
File No. 05-CR-19-1014

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Philip K. Miller, Benton County Attorney, Foley, Minnesota (for respondent)

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

Considered and decided by Gaïtas, Presiding Judge; Connolly, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
On appeal from his convictions of second -degree assault, thr eats of violence,
domestic assault-fear, and domestic assault-harm, appellant argues that (1) he is entitled to
a new trial because of plain error affecting his substantial rights when the state’s witness

2
testified about his request for an attorney; (2) his sentence for domestic assault-harm should
be vacated because it arose from the same behavioral incident as his second-degree assault
offense; and (3) the district court exceeded its authority by granting a victim’s untimely
request for restitution. We affirm in part, reverse in part , and remand with instructions to
vacate appellant’s domestic-assault-harm sentence and the restitution award.
FACTS
Appellant Jeffrey Alan Martin and victim C.P. ha d known each other for about 20
years and dated for the first 12 years. After the couple broke up in 2013, they remained
friends and lived together at times. By 2017, appellant and C.P. had jointly purchased a
trailer home with separate bedrooms for each.
On June 4, 2019, appellant had been drinking and becam e angry over an open
window in the home, calling C.P. names in a loud and angry tone. C.P. took her dog into
her bedroom after appellant started “blaring” music in his bedroom. C.P. tried watching
TV while she stayed in her room. Appellant then began yelling and banging on C.P.’s
door, eventually punching a hole in the door before returning to his room . B.T., C.P.’s
sister, called C.P., and testified at trial she could hear appellant yelling in a loud, angry,
and argumentative tone.
After ten minutes, appellant returned to C.P.’s doorway. Appellant racked the slide
of a gun outside her doorway and said to C.P., “You know what, f--k you. The next one is
for you” (the bedroom incident). C.P. knew that appellant owned a handgun that he
generally kept in his room in a gun safe , and she was familiar with the sound of a gun
racking.

3
Next, appellant went to his room for another ten minutes, at which point C.P. took
her dog into the living room to put the dog’s halter on. Appellant came out asking where
she was going, and C.P . replied, “I’m leaving.” Appellant responded, “The f--k you are,
you ain’t f--king leaving here, and you ain’t taking the f --king dog with you either.” C.P.
stated, “Oh, yes, I am.” Appellant then kicked and punched C.P. with closed fists while
she tried to block the blows (the first living -room incident) . H e said he would “blow
[C.P.’s] f--king head off” if she called the cops. He then returned to his room for a third
time.
Before C.P. left the house, appellant came back to the living room, pointed his gun
at C.P.’s chest and said, “My life is f--ked. I don’t care if I shoot you” (the second living-
room incident). C.P. thought, “Oh, God.” Between the first living-room incident and the
moment C.P. left the home, she believed about 10 to 15 minutes had passed.
C.P. got into her car with her dog and , as she was pulling out of the garage , she
heard a loud “bam” sound. C.P. turned and saw appellant standing near her car , yelling
and screaming at her. She noticed he threw something small at the car. She later saw a
dent on the rear passenger side of her car. Appellant then called B.T. and told her that he
would shoot her and her family if they came to the trailer.
Because appellant had tak en C.P.’s phone from her, she could not call anyone.
Within an hour of C.P. sitting parked on the side of a county road, an officer approached
her. Meanwhile, B.T. had called the police. While other officers were setting up a
perimeter around the mobile home, appellant called B.T. and said he knew she had called
the police. Appellant told B.T., “I'm going to f--king shoot you” and “You can tell all the

4
cops I got a f--king bullet for every one of them too.” After two-and-a-half hours, appellant
surrendered.
The police found blood on the entry door and C.P.’s bedroom door as well as four
other places in the trailer. The officers took photos of appellant’s bloody right knuckle.
Appellant admitted that the blood in the trailer was his.
In an amended complaint, respondent State of Minnesota charged appellant with
one count of felony second-degree assault, two counts of threats of violence against C.P.
and B.T. respectively, first-degree criminal damage to property, one count of misdemeanor
domestic assault-fear, and one count of misdemeanor domestic assault-harm.
At a jury trial, appellant testified in his own defense. The jury found appellant not
guilty of first-degree criminal damage to property and guilty of the other five charges. The
district court sentenced appellant to 36 months imprisonment for second-degree assault
with a deadly weapon , 15 months for threats of violence against B.T. , and 90 days for
domestic assault -harm against C.P. , and order ed him to pay $300.00 in restitution for
“damage to the doors.” This appeal follows.
DECISION
I. The detective’s testimony that he attempted to get a statement from appellant
before appellant “asked for an attorney ” is error that is plain but it did not
affect appellant’s substantial rights.

Appellant argues that an unobjected-to statement from the detective that appellant
requested an attorney constitutes prejudicial plain error warranting a new trial on the
second-degree-assault charge. We are not persuaded.

5
We review an unobjected-to error under a plain-error standard. See State v. Griller,
583 N.W.2d 736, 741 (Minn. 1998). Under this standard, the defendant has the burden of
demonstrating (1) error (2) that is plain, and (3) that affects the defendant’s substantial
rights. Id. “An error is plain if it is ‘clear’ or ‘obvious’” by “‘contraven[ing] case law, a
rule, or a standard of conduct.’” State v. Webster , 894 N.W.2d 782, 787 (Minn. 2017)
(quoting State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If those three prongs are
met, then this court may correct the error only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id.
A. Plain error
A criminal suspect has a constitutional right, under the Fifth Amendment, to counsel
during a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 442, 86 S. Ct. 1602,
611 (1966). The state may not use a defendant’s decision to exercise the constitutional
right to counsel against the defendant at trial. State v. Litzau, 650 N.W.2d 177, 185 (Minn.
2002). The state has a duty to prepare its witnesses to avoid unsolicited references to a
defendant’s exercise of his constitutional rights. Id. Testimony regarding defendant’s
request to speak wit h an attorney is inadmissible because it has “no legitimate probative
value” and serves as a “badge of guilt .” State v. Roberts , 208 N.W.2d 744, 747 (Minn.
1973).
Here, the state called a detective to testify about a statement C.P. made to him and
the evidence he gathered from the home. On cross-examination, appellant’s counsel asked:
“What other involvement did you have besides that?” The detective answered:

6
“I was there when they were looking for stuff. It was mainly
[two other detectives], but then I tried getting a statement from
[appellant], and he asked for an attorney, which was totally
fine, and ended that conversation , I collected the bullet, and
eventually I went back to the office and put it into evidence and
did my report.”
(Emphasis added.) Appellant’s counsel then asked : “[S]o essentially you took the
statement from [C.P.], did the search warrant, and then were there when the officers were
looking through the house?”
Appellant’s request for an attorney had no legitimate probative value, and the state
had a duty to properly prepare its own witness to avoid unsolicited references to appellant’s
exercise of his constitutional rights . We conclude that appellant has established that
admission of the detective’s statement referencing appellant’s r equest for counsel is error
that is plain because it violated the rule in Litzau and Roberts.
B. Substantial rights
Next, appellant bears the “heavy burden ” of showing the error affected his
substantial rights by showing prejudice and that it affected the outcome. Griller, 583
N.W.2d at 741. “To evaluate the effect on substantial rights, we consider various factors,
including the pervasiveness of improper suggestions and the strength of evidence against
the defendant.” State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017) (quotations omitted).
Regarding the first factor , the detective’s statement is the only reference to
appellant’s request for counsel. Cf. State v. Pearson , 775 N.W.2d 155, 161 -62 (Minn.
2009) (supreme court noted “numerous references” to request for counsel ). Neither party

7
further referenced the detective’s comment . As such, the single comment was not
pervasive.
Appellant cites to State v. Litzau in which the Minnesota Supreme Court concluded
that the cumulative effect of the admission of several hearsay statements denied defendant
a fair trial. 650 N.W.2d at 187. But appellant does not allege a cumulative effect of
evidentiary errors, and the record reflects no others.
On the second factor, the state presented strong evidence against appellant beyond
the victims’ testimony. Appellant admitted that he threatened to physically harm C.P. ’s
and B.T.’s family members if they arrived. And the physical evidence included photos of
appellant’s blood on the doors, floors, appellant’s bedsheets, and foam within the gun safe;
loose bullets on appellant’s bedroom floor; appellant’s open gun safe located outside of his
closet when it was normally stored inside the closet ; and photos of bruising on C.P.’s
forehead and leg.
Finally, appellant contends that the detective’s statement operated as a general
“badge of guilt,” one of the concerns that the Minnesota Supreme Court has expressed in
other cases involving testimony about a defendant’s request for counsel. Roberts, 208
N.W.2d at 747. It is unlikely that the single reference operated as a general “badge of guilt”
here, considering the jury found appellant not guilty of the criminal damage to property
charge.
We conclude that appellant has not met his burden to show that the detective’s single
reference to appellant’s request for counsel affected his substantial rights. Consequently,
appellant is not entitled to a new trial.

8
II. The domestic-assault-harm sentence should be vacated because it arose out of
the same single behavioral incident as the second-degree assault with a
dangerous weapon.

Appellant challenges the district court’s imposition of sentences for second -degree
assault with a dangerous w eapon and domestic assault-harm, arguing that the offenses
arose out of a single behavioral incident. We agree.
With exceptions not relevant here, “[i]f a person’s conduct constitutes more than
one offense . . . , the person may be punished for only one of the offenses.” Minn. Stat.
§ 609.035 (2018). Whether multiple offenses arose out of a single behavioral incident is a
mixed question of law and fact . State v. Barthman, 938 N.W.2d 257, 265 (Minn. 2020 ).
This court reviews the district court’s finding s of fact for clear error and its application of
the law to those facts de novo. Id. Determining whether two crimes are part of a single
behavioral incident requires consideration of (1) the time and place of the crimes and
(2) whether the criminal conduc t was motivated by a single criminal objective. State v.
Bauer, 792 N.W.2d 825, 828 (Minn. 2011). The state bears the burden of proving that the
crimes were not part of a single behavioral incident. State v. Zuehlke, 320 N.W.2d 79, 82
(Minn. 1982).
A. Time and place of the crimes
Because the parties do not dispute that the first living -room incident of domestic
assault-harm and the second living -room incident of second-degree assault with a
dangerous weapon occurred in the same place, we focus on the time of the two acts.
To evaluate the unity of time, this court asks whether “the offenses occurred at
substantially the same time.” Compare State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014)

9
(concluding that 33 text messages sent during a two and one -half hour period, averaging
one text every four minutes, occurred at substantially same time) (emphasis added), with
State v. Degroot , 946 N.W.2d 354, 366 (Minn. 2020) (concluding that a morning
solicitation for sex and afternoon attempted third -degree criminal sexual conduct did not
occur at substantially the same time). Because the bedroom incident and the second living-
room incident occurred within minutes of the first living-room incident, and C.P. did not
have enough time to leave the home, we conclude the offenses occurred at substantially the
same time.
B. Single criminal objective
Next we must address “whether all of the acts performed were necessary to or
incidental to the commission of a single crime and motivated by an intent to commit that
crime.” Barthman, 938 N.W.2d at 26 7 (quoting State v. Krampotich , 163 N.W.2d 772,
776 (1968)). In Jones, the Minnesota Supreme Court recognized that the appellant’s
conduct constituted a singular intent to “intimidate and harass” the victim. 848 N.W.2d at
533 (citing Bauer, 792 N.W.2d at 829 (noting that we examine the relationship of offenses
to each other when determining whether the offenses constitute a single behavioral
incident)). In State v. Williams, the supreme court concluded that a sexual assault and
attempted murder were “part of a continuum of escalating violence beginning” when he
broke into the victim’s apartment and ending when he tied a scarf around her neck. 608
N.W.2d 837, 842 (Minn. 2000) (concluding that state failed to meet its burden of proving
separate criminal objectives).

10
Here, appellant’s threats and physical beatings were motivated by a singular intent:
to make C.P. fear for her life. The record is replete with examples of how appellant sought
to make C.P. fear for her physical safety through a continuum of escalating violence.
Appellant began by insulting and threatening C.P., punching a hole in her door, and racking
his gun in C.P.’s doorway. Then, appellant physically beat C.P. in the living room. This
then escalated to appellant grabbing his gun again , pointing it at C.P., and threatening her
life. Appellant’s physical assault of C.P. was incidental to committing assault with a
dangerous weapon, unified by the singular criminal objective.
Because the second-degree assault with a deadly weapon and domestic assault-harm
are unified in time, place, and criminal objective, we conclude that these offenses arose
from a single behavioral incident . We therefore reverse and remand with instructions to
vacate the domestic assault-harm sentence.
III. The district court erred by granting C.P.’s untimely request for restitution at
the sentencing hearing.

Appellant argues that the district court lacked authority to grant C.P.’s untimely
request for restitution under the plain language of Minn. Stat. § 611A.04, subd. 1 (2018).
We agree.
This court reviews the decision to award restitution for an abuse of discretion. State
v. Andersen, 871 N.W.2d 910, 913 (Minn. 2015). A distric t court has broad discretion in
awarding restitution, id., but it abuses its discretion “when its decision [regarding
restitution] is based on an erroneous view of the law.” State v. Boettcher, 931 N.W.2d 376,

11
380 (Minn. 2019). Questions about the district court’s authority to grant restitution are
subject to de novo review. Andersen, 871 N.W.2d at 913.
The district court may order restitution sua sponte or, as here, upon a victim’s
request. See State v. Gaiovnik, 794 N.W.2d 643, 648 (Minn. 2011). If the victim requests
restitution, “ all information regarding restitution must be received . . . at least three
business days before the sentencing or dispositional hearing” to be considered at the
hearing. Minn. Stat. § 611A.04, subd.1 (emphasis added). Additionally, the court
administrator “shall provide copies of [the victim’s] request” to the defendant or
defendant’s attorney “at least 24 hours” before the hearing. Id. The statute also provides:
“The issue of restitution is reserved or [the hearing ] on the restitution request may be
continued if the victim’s affidavit or other competent evidence is not received in time.” Id.
Minn. Stat. § 611A.045 (2018) governs the process defendants must follow to
challenge a request for restitution. Respondent argues that relevant here is the requirement
that a defendant request a hearing “within 30 days of receiving written notification of the
amount of restitution requested, or within 30 days of sentencing, whichever is later.” Id.,
subd. 3(b). But the Minnesota Supreme Court has held that section 611A.045, subdivision
3(b), does not apply to a challenge to the district court’s legal authority to award restitution.
Gaiovnik, 794 N.W.2d at 648-49.
Here, a ppellant did not file a challenge to the request wit hin thirty days of the
hearing. But because appellant’s argument challenges the district court’s legal authority to
order restitution, the procedural bars under section 611A.045 do not apply. Id. at 647.

12
Additionally, at the sentencing hearing, the state offered a request for restitution
from C.P. for $300.00 for “the doors.” Appellant’s counsel said: “In regards to the house,
this is the first I have seen about it. They own the property together. Well, from what I
know that wasn’t in dispute base d on the trial. There was no criminal conduct that was
alleged from that so at this point I don’t necessarily think restitution is appropriate.”
Because the restitution order was based on one of the victims’ request, and not the
district court’s sua sponte power, section 611A.04 controls. Gaiovnik, 794 N.W.2d at 652.
The plain language of section 611A.04 is clear that “[i]n order to be considered at the
sentencing or dispositional hearing” all information on restitution must be received three
business days before the hearing and the defendant must have sufficient notice of the
restitution request . Minn. Stat. § 611A.04, subd. 1. This plain -language interpretation
tracks the supreme court’s reasoning under Gaiovnik, that the procedures of section
611A.04 are necessary to provide defendant with notice of the specific items and their
dollar amounts, and an opportunity to respond. 794 N.W.2d at 652 (“The procedures set
forth in sections 611A.04, subdivision 1, were the refore necessary to allow H.A.D. to
receive notice of [the victims’] restitution requests and an opportunity to respond to these
requests.”) (citing In re Welfare of H.A.D., 764 N.W.2d 64, 66-67 (Minn. 2009)). Because
appellant did not receive statutory n otice under section 611A.04, the district court lacked
authority to order the restitution. The district court had authority to reserve the issue of
restitution or to continue the hearing, but it lacked authority to grant C.P.’s request for

13
restitution because it did not follow the procedures under section 611A.04. We therefore
reverse and remand with instructions to vacate the restitution award of $300.00 to C.P.
Affirmed in part, reversed in part, and remanded.