STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A22-0054

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                   Devon Griffin Seivers,
                                        Appellant.

                                  Filed January 29, 2024
                                         Affirmed
                                        Ross, Judge

                                Stearns County District Court
                                  File No. 73-CR-21-3355

Keith Ellison, Attorney General, Peter Magnuson, 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

Paul J. Maravigli, Special Assistant Public Defender, Minneapolis, Minnesota (for
appellant)

         Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and Schmidt,

Judge.

SYLLABUS

         The residence of a runaway child’s custodial parent rather than the place the child

intends to reside determines venue under Minnesota Statutes section 627.15 (2020) for

prosecuting a criminal action for alleged abuse of a child, including criminal sexual

conduct.

OPINION

ROSS, Judge

       A Stearns County jury found appellant Devon Seivers guilty of third-degree

criminal sexual conduct based on evidence that he met a 14-year-old girl on Facebook and

sexually assaulted her after she ran away from her mother’s Stearns County home. Seivers

challenges his conviction on three grounds. He contends first that the state failed to prove

the element of venue because the child’s act of running away defeated venue in Stearns

County. He contends second that the state committed a Brady violation by withholding two

child-protection orders regarding the victim. And he contends third that the district court

violated his right to a fair trial by denying his request for advisory counsel. We hold that

Seivers’s venue challenge fails because the child’s custodial parent’s residence, not the

runaway child’s intent to reside elsewhere, determines venue. His Brady challenge fails

because the child-protection orders were immaterial and therefore not favorable to his

defense. And his fair-trial challenge fails because the district court acted within its

discretion by denying his request for advisory counsel. We therefore affirm.

                                         FACTS

       Thirty-eight-year-old Devon Seivers met a 14-year-old girl in November 2020 on

Facebook and began grooming her for a sexual relationship. The girl had been living with

her mother in her mother’s Stearns County house for about five years. She had occasionally

run away but returned home, where she had a bedroom and all her belongings. Seivers

communicated with the child through instant messaging and phone calls, claiming he was




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24 years old and engaging her in coarse sexual conversation. About two months after

Seivers first met the girl online, she ran away again to her friend’s house in Benton County.

       Seivers arranged to meet the girl in person. He drove to her friend’s house at night

on January 24, 2021, and he picked up both children. He drove them around, smoking

marijuana, until he reached La Quinta Inn in Brooklyn Park. Seivers rented a two-bed hotel

room. Seivers and the girl he had been sexually grooming occupied one bed, and her friend

stayed in the other. Seivers engaged in sexual intercourse with the girl. The next morning,

he drove the two children back to the friend’s home in Benton County. The girl told her

friend that “she wanted to go get a pregnancy test . . . and that her [vagina] was sore.” She

sent a Facebook message asking Seivers, “Did u [ejaculate] inside of me?” Seivers

responded: “I was pulling out[.] [M]y bad.”

       The girl’s mother had been trying to locate her daughter since she disappeared from

home. She notified child-protection workers, who secured an ex parte emergency

protective-care order from juvenile court in Stearns County on January 20. She logged into

her daughter’s Facebook account and found the sexually explicit messages with Seivers.

She notified the girl’s social worker, who forwarded the messages to police. Police located

the girl and picked her up from her friend’s house on January 27.

       A social worker reported to police on January 29 that the girl had been sexually

abused. The juvenile court held an emergency protective-care hearing that same day. It

ordered the temporary transfer of physical and legal custody to Stearns County Human

Services.




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         The state then charged Seivers with third-degree criminal sexual conduct (victim

between the ages of 13 and 15 and the offender more than 24 months older) in Stearns

County District Court. Seivers told the district court during a status hearing that he intended

to discharge his public defender. He also asserted that the prosecutor had not fulfilled the

state’s duty to disclose Brady material and that he sought all material the state possessed.

And he asked the district court to appoint advisory counsel to help him file motions while

stating that he refused to waive his right to a speedy trial to allow time for any advisory

counsel to prepare. The district court refused Seivers’s request to appoint advisory counsel.

Seivers therefore kept his public defender and did not waive his right to counsel. But five

days before trial, Seivers again announced that he intended to discharge his public

defender. The district court found that Seivers knowingly, intelligently, and voluntarily

waived his right to counsel. Seivers again asked the district court to appoint advisory

counsel. The district court denied his request, finding that it was impossible both to afford

advisory counsel sufficient time to prepare and to honor Seivers’s asserted right to a speedy

trial.

         Immediately before the parties began questioning potential jurors for jury selection,

Seivers objected to having not received the girl’s child-protection records. The district

court informed Seivers that he could not obtain these confidential child-protection records

without having first made a Paradee motion, which he should have made long before trial.

         Seivers represented himself at trial without counsel. The prosecutor and the district

court occasionally helped him navigate trial procedures. For example, when Seivers told

the jury about his “44-page criminal history,” the district court stopped the trial and


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cautioned Seivers outside the presence of the jury, “I cannot in good conscience allow you

to continue going into and delving into your criminal history, especially with such

significant descriptions in terms of the drugs that you may or were convicted of possessing

or selling.” The prosecutor repeatedly helped Seivers admit exhibits into evidence. The

jury found Seivers guilty of third-degree criminal sexual conduct, and the district court

convicted him accordingly.

       Seivers obtained the child-protection records after trial, covering the period from

January 20 to 29, and he filed a notice of appeal. Because the child-protection records were

not part of the district court’s record and therefore not properly before this court in this

appeal, we granted Seivers’s motion to stay the appeal to pursue postconviction relief.

Seivers petitioned for postconviction relief on three grounds, arguing that venue was

improper in Stearns County, that the state failed to prove the venue element, and that the

prosecutor committed a Brady violation by failing to disclose the child-protection records.

The district court denied Seivers’s petition. We granted Seivers’s motion to dissolve the

stay, and we now decide the issues he raises in this appeal.

                                         ISSUES

I.     Did the state offer sufficient evidence of venue?

II.    Did the state’s failure to disclose the child-protection orders implicate Seivers’s

       rights under Brady?

III.   Did the district court act within its discretion by declining to appoint advisory

       counsel?




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                                        ANALYSIS

       Seivers challenges his conviction on three grounds. He contends first that the state

failed to prove the element of venue because the child’s act of running away defeated venue

in Stearns County. He contends second that the state engaged in a Brady violation by

withholding child-protection orders regarding the child. And he contends third that the

district court violated his right to a fair trial by denying his request for advisory counsel.

We address each contention in turn.

                                              I

       Seivers contends that the evidence was insufficient to sustain his conviction of third-

degree criminal sexual conduct. He does not question the sufficiency of the evidence on

the culpability elements of the crime, which involves an offender who is more than 24

months older than the victim and who engages in sexual penetration of a 14- or 15-year-

old child. 

, subd. 1(b) (2020). Seivers instead questions only whether

the state proved venue, which the supreme court has implied the state must prove beyond

a reasonable doubt. See State v. Heidelberg, 

 (Minn. 1944) (holding

that the state had proven venue beyond a reasonable doubt); see also State v. Johnson, 

, 161 (Minn. 2023) (observing that the supreme court has never “squarely

addressed the standard of proof” required to satisfy the venue requirement). Because

Seivers initially filed a direct appeal and then moved for a stay to pursue postconviction

relief, we review his sufficiency-of-the-evidence challenge using the same standard we

apply on direct appeal. See State v. Beecroft, 

 (Minn. 2012). Seivers’s

challenge turns on interpreting Minnesota Statutes section 627.15, calling for our de novo


                                              6
review. See State v. Henderson, 

, 625 (Minn. 2018) (reviewing an

appellant’s sufficiency-of-the-evidence argument de novo because it turned on a question

of statutory interpretation). For the following reasons, our de novo review leads us to

affirm.

          Seivers argues specifically that the state failed to prove the venue element because

the child no longer resided in Stearns County either at the time Seivers sexually abused her

or when the state discovered the abuse. The venue requirement arises from the constitution,

under which an accused generally has the right to be tried “by an impartial jury of the

county or district wherein the crime shall have been committed.” Minn. Const. art. I, § 6.

Minnesota Statutes section 627.01, subdivision 1 (2020), likewise provides that “every

criminal cause shall be tried in the county where the offense was committed,” except when

the Minnesota Rules of Criminal Procedure provide otherwise. We have interpreted this

codified constitutional right as making venue “an essential element of every criminal

offense” and requiring the state to prove beyond a reasonable doubt that the charged offense

“was committed in the county where the case is being tried.” State v. Pierce, 

, 85 (Minn. App. 2010) (citing 

, subd. 1 (2008)).

          The legislature, however, may enact special venue statutes within that constitutional

framework. State v. Krejci, 

 (Minn. 1990). The legislature did so as

it regards the offense charged in this case; in criminal actions arising from alleged child

abuse, the crime “may be prosecuted either in the county where the alleged abuse occurred

or the county where the child is found.” 

. The state charged Seivers




                                                7
with third-degree criminal sexual conduct in Stearns County District Court. We therefore

must first determine whether Seivers’s charged offense constitutes “child abuse.”

       It is clear that his charged offense does constitute child abuse as it regards the special

venue statute. That statute does not define child abuse, but Minnesota Statutes section

260C.007, subdivision 5 (2020), does, and the definition includes third-degree criminal

sexual conduct. Minnesota’s third-degree assault and first-degree murder statutes similarly

include third-degree criminal sexual conduct in the definition of “child abuse.” See 

(d) (2020); 

, subd. 2 (2020) (adopting section

609.185(d)’s definition of child abuse). We conclude that third-degree criminal sexual

conduct meets the definition of child abuse as it bears on determining venue. In choosing

to prosecute Seivers in Stearns County under the special child-abuse venue statute, the state

therefore bore the burden to prove beyond a reasonable doubt that the child was found in

Stearns County. See id.; Pierce, 192 N.W.2d at 85. We next address whether the child was

“found” there.

       We have already determined that a child “is found,” among other potential places,

where she resides. State v. Larson, 

 (Minn. App. 1994), rev. denied

(Minn. Oct. 14, 1994); see also State v. Rucker, 

 (Minn. App. 2008),

rev. denied (Minn. Sept. 23, 2008) (holding that a child is found in the county where the

child resided either when the abuse occurred or when the abuse was discovered). We focus

here on where the child resided at the time Seivers sexually abused her or at the time the

sexual abuse was discovered.




                                               8
       We are satisfied that venue was proper in Stearns County, where the child resided

with her mother both at the time Seivers abused her and at the time child-protection workers

and police discovered the abuse. Although no Minnesota court has defined a child’s

residence when determining venue under Minnesota Statutes section 627.15, caselaw

confirms the self-evident impression that a child’s residence is generally determined by the

custodial parent or parents. The supreme court has announced, “A child’s domicile follows

that of the parent to whom custody has been given.” Ray v. Ray, 

(Minn. 1974). Because the child resided with her mother in Stearns County, Stearns County

was a proper venue for prosecution.

       Seivers unconvincingly emphasizes the child’s runaway status and her alleged

intention to reside somewhere other than her mother’s Stearns County home. As a threshold

matter, Seivers’s argument rests largely on conjecture. He implicitly asks us to infer that,

because the child ran away from home, she must have no longer intended to reside with

her mother in Stearns County and instead intended to reside with her friend in Benton

County. This is a stretch, in addition to being irrelevant. The child frequently ran away

from home only to return. Seivers points to no direct evidence of the child’s supposed intent

to reside (rather than temporarily stay) at her friend’s home, and the jury certainly made no

finding supporting the argument. But the argument fails even if Seivers correctly interprets

the circumstances. We conclude that the child’s supposed intent to live elsewhere cannot

shield Seivers from prosecution and conviction. A runaway child has, by definition, only

temporarily departed from her lawful residence, because a “[r]unaway” is a child “who is

absent from the home of a parent or other lawful placement without the consent of the


                                             9
parent, guardian, or lawful custodian.” Minn. Stat. § 260C.007, subd. 28 (2022). A

runaway might hope to live somewhere other than home, and she might even intend

earnestly to do so. But as a minor under her mother’s parental authority, she has no lawful

right to supplant her mother’s residential decision with her own. The residence of a

runaway child’s custodial parent rather than the child’s intended residence therefore

determines venue under Minnesota Statutes section 627.15 for prosecuting a criminal

action for alleged child abuse, which includes criminal sexual conduct committed against

a minor victim. Because the evidence informs us that the child’s mother never consented

to the child changing her residence from Stearns County, venue was proper there.

       We are not persuaded toward a different understanding of residence by Seivers’s

reliance on the supreme court’s decision in Christensen v. Healey, 

 (Minn.

2018). The Christensen court addressed a parenting-time dispute in which the parties

disagreed about whether the endangerment standard in Minnesota Statutes section

518.18(d)(iv) (2016), or the best-interests-of-the-child standard in Minnesota Statutes

section 518.175, subd. 5(b) (2016) applied. 913 N.W.2d at 440–41. It turned to the

definition of “physical custody and residence,” which is “the routine daily care and control

and residence of the child.” 

 (citing 

, subd. 3(c) (2016)). The

Christensen court held that, because the father’s motion to increase parenting time affected

the mother’s daily control and care of the child, granting the motion would modify the

parties’ custody agreement, and the motion therefore could succeed only if the father met

the endangerment standard. 

. We read nothing in the supreme court’s reasoning

or its reliance on the definition of “physical custody and residence” to suggest that a


                                            10
parent’s custody is severed by a child’s briefly running away to another household.

Physical custody and residence are instead necessarily intertwined, affording the parent

with physical custody the authority to provide daily care and control of the child. See Wolf

v. Oestreich, 

, 254 (Minn. App. 2021) (“The principal location where a

child resides relates to physical custody, which involves the ‘routine daily care and control’

of that child.” (quoting 

, subd. 3(c) (2018))), rev. denied (Minn. May

18, 2021). The Christensen analysis and holding do not alter our decision regarding a

child’s residence and venue for prosecution for child abuse.

       We add that we can imagine circumstances in which Seivers’s theory that a runaway

child’s intent determines her residence could leave venue undiscernible. This would occur,

for example, if a child living with his Minnesota parent runs away intending to live with a

friend in Wisconsin but is abducted on the way, assaulted in an unknown Minnesota

county, and then dropped off in Wisconsin where he reports the crime. Under Seivers’s

theory, venue would not lie in the county of the parent’s residence, because the child did

not intend to live there at the time of the offense; venue would not lie in the county where

the crime was discovered or reported, because it was reported outside the state; and venue

cannot practically lie in the county where the crime occurred because the child does not

know where that is. We are confident that the legislature intended the venue statute to cover

all circumstances.

       Our holding that the prosecution was properly venued in Stearns County also stands

firm in the face of Seivers’s alternative contention that the January 20 child-protection

order severed the mother’s custody and ended the child’s residence in Stearns County.


                                             11
Seivers overemphasizes the impact of the order as it bears on residence. A juvenile court

may issue an ex parte order for emergency protective care if it finds that reasonable grounds

exist to believe that the child is endangered by her surroundings or conditions. Minn. R.

Juv. Prot. P. 40.01 (citing Minn. Stat. § 260C.151, subd. 6 (2022)). A resulting emergency

order is temporary, effective only until the juvenile court holds a protective-care hearing.

See Minn. R. Juv. Prot. P. 41.01, subd. 1(b) (prohibiting the state from holding a child in

emergency protective care for more than 72 hours without a hearing and an order for

continued protective care). At that hearing, the juvenile court determines whether the child

should be returned to home or placed in protective care. See Minn. R. Juv. Prot. P. 41.01,

subds. 1, 2(a). Because the January 20 ex parte order was merely a temporary grant of

custody to Stearns County pending a hearing, Seivers’s argument fails. The child’s mother

retained legal and physical custody on January 24 when the sexual assault occurred and on

January 29 when it was discovered and reported. The ex parte order therefore does not

invalidate venue in Stearns County.

       Having established that a child’s intent does not determine residence as to venue in

child-abuse cases and that the home of the custodial parent (or parents) does, we easily

resolve Seivers’s evidence-insufficiency claim. We resolve insufficient-evidence claims

by exploring the record to determine whether the facts and their inferences would permit

the jury to find the defendant guilty beyond a reasonable doubt. State v. Griffin, 

 (Minn. 2016). We view the evidence in the light most favorable to the

verdict and assume the jury disbelieved contrary evidence. 

 The child’s mother testified

that they lived together in Stearns County. Because the direct evidence of the child’s


                                             12
residence at her mother’s home permitted the jury to find that she resided in Stearns County

when Seivers assaulted her, the evidence was sufficient to prove venue.

                                              II

       We are also satisfied that the postconviction court properly rejected Seivers’s

argument that the state’s failure to disclose the child’s juvenile-protection orders violated

his right to due process under Brady v. Maryland, 

 (1963). A prosecutor violates

a criminal defendant’s right to due process by suppressing material evidence favorable to

the defendant. Brady, 

. Seivers could establish that the state violated his right

to receive evidence under Brady only if he establishes three elements: (1) that the

undisclosed evidence was favorable to Seivers because it was either exculpatory or

impeaching; (2) that the evidence was either intentionally or unintentionally suppressed by

the prosecutor; and (3) that the absence of the evidence prejudiced his defense. Walen v.

State, 

 (Minn. 2010). Seivers contends that the child-protection orders

were material because they contradicted the state’s assertion that the child resided in

Stearns County when Seivers assaulted her. The contention fails because, for the reasons

we have just explained, the ex parte child-protection order temporarily interrupting the

mother’s custody of the child did not invalidate venue in Stearns County. There is therefore

no reasonable probability that the state’s disclosure of the child-protection orders would

have resulted in a different outcome at trial. The evidence was not material, and Seivers’s

Brady challenge fails.




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                                              III

       Seivers contends finally that the district court deprived him of a fair trial by refusing

to appoint him advisory counsel. A district court may appoint advisory counsel to assist an

unrepresented defendant because either the court is concerned with the fairness of the

process or because of concerns about potential delays in completing the trial. Minn. R.

Crim. P. 5.04, subd. 2. But a self-represented defendant has no constitutional right to

advisory counsel. State v. Clark, 

 (Minn. 2006). We review a district

court’s decision declining to appoint advisory counsel for an abuse of discretion. State v.

Gunderson, 

, 163–64 (Minn. App. 2012); see also Minn. R. Crim. P. 5.04,

subd. 2 (stating that a district court “may appoint advisory counsel to assist a defendant”

(emphasis added)). The district court’s decision not to appoint advisory counsel fell within

its discretion here. Seivers discharged his public defender and requested advisory counsel

only five days before trial while refusing to forgo his right to a speedy trial to allow for a

continuance so that any advisory counsel could prepare to effectively advise or assist him.

Left with no ability both to vindicate Seivers’s right to a speedy trial and to assign him

counsel with sufficient time to prepare, the district court applied its discretion rationally by

declining Seivers’s request for advisory counsel and honoring his request to maintain the

trial schedule.

                                         DECISION

       The state presented sufficient evidence to prove the residence of the runaway child’s

custodial parent, rather than the child’s intended residence, to establish proper venue under

Minnesota Statutes section 627.15. And Seivers fails to convince us to reverse his


                                              14
conviction based on his Brady challenge or his contention that the district court was

required to appoint advisory counsel for him.

      Affirmed.




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