This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A15-0870 State of Minnesota, Respondent,

vs. Doan Meshell Engel, Appellant Filed May 23, 2016 Affirmed in part, reversed in part, and remanded Worke, Judge Ramsey County District Court File Nos. 62-CR-14-3766, 62-CR-14-9333 Lori Swanson, Attorney Gene ral, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Peter R. Marker, A ssistant County Attorney, St. Paul, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Schellhas , Presiding Judge; Worke, Judge; and Johnson, Judge. U N P U B L I S H E D O P I N I O N WORKE , Judge Appellant challenges her assault convict ions, arguing that the district court: (1) erred by instructing the ju ry on the duty to retreat, (2) plainly erred by inadequately2 responding to a question from the jury, (3) abused its discretion by prohibiting certain testimony, (4) abused its disc retion by declining a downward sentencing departure, (5) erred by entering convicti ons for both assault counts; and (6) abused its discretion by awarding restitution. We affirm in part, reve rse in part, and remand with instructions to vacate judgment of convictio n on second-degree assault. FACTS Appellant Doan Meshell Engel and R.G. started dating approximately 15 years ago and resided together in a home in St. Paul. In April 2014, En gel moved to California with her daughter. After Enge l moved, R.G.’s son (R.G.J.), R.G.J.’s girlfriend, and the couple’s infant daughter moved into the St. Paul residence with R.G. On May 3, Engel returned to Minnesota, a nd she stayed in a ho tel with R.G. the next night. On May 5, Engel and R.G. began arguing at the St. Paul residence after Engel told R.G. to clean the hous e. Engel subsequently calle d 911 and stated that R.G. “accidentally . . . got stabbed. ” Engel denied st abbing R.G., repeat ed that it was an accident, and stated that sh e was helping R.G. clean. Officer Peter Baldwin arrived at R.G.’s re sidence after receiving a call that a male had been stabbed by his girlfri end. Engel told Officer Bald win that she did not stab R.G and that she lives in California. Engel to ld Officer Nicole Obre stad that R.G. was bleeding as he entered the house from the ba ckyard and that somebody stabbed him. Engel did not appear injured or request medical attention. R.G. arrived at the hospital for emergency surgery. Medical staff concluded that R.G. had been stabbed in the chest by an obje ct that penetrated his heart. On May 9,3 Officer Nichole Sipes met with R.G. at the hos pital. R.G. appeared groggy and slightly confused. R.G. told Officer Sipes that Engel re sided in California. R. G. said that he was arguing with Engel on May 5 because he did not want to pay two mortgages. R.G. said that he previously pushed Engel but denied getting physi cal on May 5. On May 11, Officer Sipes spoke with R.G. again at th e hospital, and R.G.’s condition appeared improved. R.G. said that he may have been physical with Engel, but he did not remember. Engel was charged with firs t- and second-degree assault. A jury trial commenced, and R.G. testified that Enge l moved to California and vis ited him in May 2014. When asked whether an argument occurred on May 5, R.G. stated: “T here probably was because [R.G.J.] was liv ing there and [Engel] wa sn’t in control of the house no more. She was living in California. . . . [T]hat was her little domain, and thennow it wasn’t hers
no more . . . .” Engel testified about prior incidents when R.G. physically abused her, but the testimony was admitted solely fo r demonstrating the nature and extent of the relationship. Engel testified that in 2012 R.G. choked her and knocked he r out. Again in 2012, Engel testified, R.G. choked her, pulled her hair, an d pushed her face to the ground. Engel also testified about another incident in 2013, wherei n R.G. repeatedly stru ck her on the head. Engel testified that the abuse conti nued on numerous occasions in 2014. Engel also testified that on May 5 the coup le argued after she told R.G. to clean the house. Engel testified that R.G. choked her and dragged her into the kitchen. Engel told R.G. that he was going to jail and that she was going to call the police. Engel4 testified that R.G. pus hed her “really hard” up against th e sink, pulled her hair, and said, “I should knock you out.” En gel responded by cutting R.G. w ith a knife. Engel testified that she thought R.G. was going to kill her and that they had never fo ught like that before. Numerous family members also testified ab out prior acts of vi olence between R.G. and Engel for the sole purpose of considerin g whether Engel was re asonably put in fear of serious bodily harm. Engel’ s sister testified that she previously observed R.G. choke Engel. Engel’s mother testified that she pr eviously observed R.G. knock Engel to the floor. Engel’s daughter testified that she pr eviously heard a “big boom,” and saw that R.G. had slammed Engel against a wall and started to choke her. Prior to instructing the jury , the district court conclude d that the duty to retreat applied. Engel’s attorney argu ed that the duty to retreat did not apply. The district court provided the following instru ctions on self-defense: Self-Defense—Death Not the Result The defendant is not guilty of a crime if the defendant used reasonable force against [R.G.] to resist an offense against the person, and such an offense was being committed or the defendant reasonably believed that it was. It is lawful for a person, who is being assaulted and who has reasonable grounds to be lieve that bodily injury is about to be inflicte d upon the person, to defend from an attack. In doing so, the pers on may use all force and means that the person reasonably believes to be necessary and that would appear to a reasonable person, in similar circumstances, to be necessary to prevent an injury that appears to be imminent. The kind and degree of fo rce a person may lawfully use in self-defense is limite d by what a reasonable person in the same situation would believe to be necessary. Any use of force beyond that is regarded by the law as excessive.5 The state has the burden of proving beyond a reasonable doubt that the defe ndant did not act in selfdefense. The rule of self-defense doe s not authorize one to seek revenge or to take into his or her own hands the punishment of an offender. Self-Defense—Retreat The legal excuse of self-d efense is available only to those who act honestly and in go od faith. This includes the duty to retreat or avoid the danger if reasonably possible. The jury found Engel guilty of both counts. The distri ct court sent enced Engel on count one to a presumptive sentence of 86 months in prison. The district court stated that count two “would remain w ith a conviction from the jury but unadjudicated.” The district court left restitution open for 30 days, stating that it was considering a restitution hearing. The district court then ordered En gel to pay $31,890.45 in restitution. This appeal follows. D E C I S I O N Jury instruction Engel argues that the district court erre d by including a jury instruction on the duty to retreat because whether the St. Paul resi dence was her home was a question of fact for the jury. District courts have “significant discretion to craft jury instructions.” State v.
Devens , 852 N.W.2d 255, 257 (Minn. 2014). A jury instruction is erroneous “if it materially misstates the law.” Id. “[A] person may act in self-defense if heor she reasonably be lieves that force is necessary and uses only the level of force reasonably nece ssary to prev ent the bodily harm feared.” Id. at 258; see Minn. Stat. § 609.06, subd. 1(3) (2014). A defendant bears6 the burden of producing evidence to support a self-defense claim. State v. Basting , 572 N.W.2d 281, 286 (Minn. 1997). A self-d efense claim contains four elements: (1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger. Id. at 285. But, when acting in self-defense, a person does not have a duty to retreat from her or his home. State v. Glowacki , 630 N.W.2d 392, 399 (Minn. 2001). If the defense is raised, the state bears the bur den of disproving one or more of the elements beyond a reasonable doubt. Basting , 572 N.W.2d at 286. The record shows that Engel did not reside in the St. Paul home. Engel agreed that she permanently moved to California before May 5, she enrolled her daughter in school in California, and she agreedon a separate occasion that she moved to California “months” before May 5. Engel also told O fficer Baldwin that sh e lived in California. Additionally, multiple witnesses testified th at Engel lived in California. R.G. stated that Engel moved to California and was visiting in May. A fri end of R.G. testified that Engel lived in California in 2014. R.G.J. testified that he moved into the St. Paul residence in April 2014 and, at the time, only R. G. lived there. R.G.J. also stated that Engel did not live in the house and that she live d in California. The district court did not abuse its discretion because the undisputed evid ence would lead the jury to reach the only conclusion that the St. Paul residence was not Engel’s home. See State v. Soukup , 656 N.W.2d 424, 431 (Minn. App. 2003) (stating that a factual dispute becomes a question of7 law “when the evidence in the re cord is undisputed and leads . . . to a single conclusion”), review denied (Minn. Apr. 29, 2003). Jury question Engel argues that the district court committ ed “prejudicial plain error” by failing to adequately clarify the jury’s question relating to the self-defense instructions. During deliberation, the jury asked: “Is ‘self-defense-[d]eath not the result’ [and] ‘[s]elf-defenseretreat’ the same category or ar e they two different things? How do they re late to each other?” The district court proposed instructi ng the jury to direct their attention to the instructions previously given and to give the words used in the instructions their common and ordinary meaning. The parties did not object to the proposed instruction, and the district court instructedthe jury accordingly. Engel did not object to the di strict court’s response, so we review for plain error. See State v. Griller , 583 N.W.2d 736, 740 (Minn. 1998) (reviewing for plain error when appellant did not object to jury instructions). Engel must demonstrate: “(1) error; (2) that was plain; and (3) that affect ed [her] substantial rights.” State v. Smith , 825 N.W.2d 131, 138 (Minn. App. 2012), review denied (Minn. Mar. 19, 2013). If all three prongs are met, this court considers “whether it should addr ess the error to ensure fairness and the integrity of the judicial proceedings.” Griller , 583 N.W.2d at 740. District courts have discreti on to decide whether to rereadprevious instructions or give no response at all. State v. Murphy , 380 N.W.2d 766, 772 (Minn. 1986); see Minn. R. Crim. P. 26.03, subd. 20(3)(a) (“The [district] court may give additional instructions.” (emphasis added)). “[I]f a ju ry is confused, additional instructions clarifying those8 previously given may be appropriate since the interests of ju stice require that the jury have a full understanding of the case and the [applicable] rules of law.” Murphy , 380 N.W.2d at 772 (quotation omitted). Engel relies on State v. Shannon , in which the prosecutor made a statement in closing argument that was inconsistent w ith supreme court precedent, and urged the jurors to apply an improper standard. 514 N.W.2d 790, 792 (Minn. 1994). The supreme court described the statement as “imp roper, misleading, and confusing.” Id. at 793. The jury asked for clarification, and the district court directed the jury to consider the instructions previously provided. Id. at 792. The supreme c ourt granted the defendant a new trial because the prosecutor created the conf usion, and the district court declined to correct it. Id. at 793. Engel’s reliance on Shannon is unpersuasive. Here, the district court’s instructions are consistent with prior ca selaw and the jury in struction guide. See Basting , 572 N.W.2d at 285 (listing elem ents for self-defense claim); see also Glowacki , 630 N.W.2d at 399 (stating that a person need not retreat from their home); 10 Minnesota
Practice , CRIMJIGS 7.05, .06 (Supp. 2010). Th e jury also did not rely upon an “improper, misleading, and confusing” argument offered by the state. Moreover, the jury already possessed an instruction that provided guidance to the question: “You must consider these instructions as a whole and regard each instruction in the light of all the others. The order in which the instructions are given is of no significance.” See State v. Crims , 540 N.W.2d 860, 864–65 (Minn. App. 1995) (concluding that no plain error existed when referring the jury to the instructions and9 stating that “[n]othing . . . indicates the jury was incapable of resolving its confusion by reference to the written instru ctions it already possessed”), review denied (Minn. Jan. 23, 1996). Therefore, the district court did not comm it plain error when it instructed the jury to direct its attention to the instructions previously given. Prohibited testimony Engel argues that the district court co mmitted “reversible erro r” by prohibiting her from testifying about R. G.’s alleged drug dealing, claimi ng that she was denied her right to testify and her right to present a comple te defense. “A district court has broad discretion in evidentiary matters.” State v. Scruggs , 822 N.W.2d 631, 643 (Minn. 2012). A district court’s evidentiary ruling will stan d absent a clear abuse of its discretion. State v. Kelly , 435 N.W.2d 807, 813 (Minn. 1989). A defendant has the right to testify and th e right to a meaningful opportunity to present a complete defense. State v. Richardson , 670 N.W.2d 267, 277, 282 (Minn. 2003). But these rights are not unrestricted. See id. at 277, 282. In exercising the right to present a defense, the defendant must co mply with evid entiary rules “designed to ensure both fairness and reliability in the ascertainmen t of guilt and innocence.” Id. at 277 (quotation omitted). When ex ercising the right to testify, the defendant must comply with evidentiary rules, but restrictions impos ed on the right must not be “arbitrary or disproportionate to the purposes they are designed to serve.” Id. at 282 (quotation omitted). A district court may exclude rele vant evidence “if its probative value is substantially outweighed by the danger of unf air prejudice, confusion of the issues, or10 misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence .” Minn. R. Evid. 403. Here, the state moved to exclude any evid ence referencing alle ged drug dealing or drug use by R.G. Engel opposed the motion, arguing that on May 5, R.G. became violent after she threatened to tell the police about hi s alleged drug dealing. The district court granted the state’s motion, stating that “the probative value of such evidence is substantially outweighed by the danger of unfair prejudice, as well as the danger or risk of misleading . . . and confusing the jury.” The district court wanted to avoid having a “mini trial” over the extent of R.G.’s drug activities. The district court did not abuse its di scretion by limiting Engel’s testimony. In State v. Bland , the appellant argued that the district court improperly restricted his attorney’s cross-examin ation of the victim with regard to the victim’s prior acts of violence. 337 N.W.2d 378, 382 (Minn. 1983). But the supreme court affirmed, stating that “given the wealth of evidence that was admitted relating to the victim’s violent past, it would be hard to find any prejudice even if there was error. St ated differently, the evidence excludedwas cumulativ e evidence.” Id. at 384. Similarly here, Engel testified about why the argument started, the argument’s intensity, and that she threatened to call the police. The district court allowed testimony about prior acts of violence between R.G. and Engel. Engel’s family members testified that they witnessed prior acts of physical violence. Moreover, the district court recognized the cumulativ e nature of the proposed drug-t rafficking testimony, stating that11 it was “one of multiple reasons for the alterca tion.” Therefore, the district court did not abuse its discretion by prohib iting the proposed testimony. Presumptive sentence Engel argues that this court should redu ce the district court’s imposition of the presumptive sentence because sh e suffered years of physical and mental abuse by R.G. This court “afford[s] the [district] court gr eat discretion in the imposition of sentences and reverse[s] sentencing decisions onl y for an abuse of that discretion.” State v. Soto , 855 N.W.2d 303, 307–08 (Minn. 2014) (quotation omitted). Minnesota’s sentencing guidelines were created “to establish rational and consistent sentencing standards that reduce se ntencing disparity.” Minn. Sent. Guidelines 1.A (2012). District courts may depart from a presumptive sentence if “identifiable, substantial, and compelli ng circumstances” exist. Id. 2.D.1 (2012). Only a “rare case” warrants reversal of a district court’s refusal to depart. State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981). This court will not “interfere with the sentencing court’s exercise of discretion, as long as the record shows [ it] carefully evaluated all the testimony and information presented.” State v. Pegel , 795 N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted). Engel relies on State v. Hennum , in which, the defendant similarly argued that she was subjected to years of severe physical a nd mental abuse by her husband, the victim. 441 N.W.2d 793, 795, 801 (Minn. 1989). The defendant’s in juries included a punctured lung, a ruptured spleen , and a broken nose. Id. at 795. After a nother beating, the defendant shot her husband, killing him. Id. at 795–96. The defe ndant was convicted of12 second-degree felony murder and did not receive a downward departure. Id. at 797, 800. The supreme court reversed, stating that the case was a rare case in which an appellate court is “justified in interfering with the [d istrict] court’s decision not to downwardly depart.” Id. at 801. Engel’s reliance on Hennum is unpersuasive. First, de spite reversing the district court, the supreme court reaffirmed that it remains a “rare case” that merits reversal. Id. Second, a doctor examin ed the defendant in Hennum after the shootin g, and she had “multiple abrasions, bruise s, and a contusion.” Id. at 797. Here, law enforcement indicated that Engel did not appear injured, and she did not request medical attention. Third, the evidence in Hennum indicated that the defendant suffered from batteredwomen’s syndrome, psychoneurotic depression, and an antisocial personality disorder. Id. at 797. Here, the record does not es tablish that Engel suffered from the abovementioned disorders. Moreover, the supreme court has refused to reverse a presump tive sentence when there are “valid reasons for adheri ng to the presumptive sentence.” See Kindem , 313 N.W.2d at 7–8 (“[W]hile there may have be en arguments for departing downward, there were also reasons for not doing so. . . . [T]h e determination whether . . . to depart was clearly a discretionary decision for the [district] court to make.”). Here, the district court recognized that the r ecord did not support Engel’s claim that R.G. was the aggressor, and the district court also recognizedthe nature of R.G.’s injury. Therefore, the district court did not abuse its discretion by refusi ng to grant a downward departure.13 Warrant of commitment Engel argues that the district court e rred by entering a “co nviction” for both counts. “Upon prosecution for a crime, the actor may be co nvicted of either the crime charged or an included offens e, but not both.” Minn. Stat. § 609.04, subd. 1 (2012). An included offense includes “[a] lesser degree of the same crime.” Id. , subd. 1(1). A guilty verdict alone does not c onstitute a conviction. Spann v. State , 740 N.W.2d 570, 573 (Minn. 2007). Rather, a “convic tion” occurs when a jury’s guilty verd ict is accepted and recorded by the court. Minn. Stat. § 609.02, subd. 5(2) (2012). The district court correctly stated that coun t two “would remain with a conviction from the jury but unadjudicated.” But we are di rected to examine the warran t of commitment to determine whether a conviction was entered. See Span , 740 N.W.2d at 573. Here, the jury found Engel guilty of first- and second-de gree assault. The warrant of commitment states that Engel is “convict ed” for both counts. Under section 609.04, second-degree assault is an “included o ffense” of first-degree assault. See State v. Hackler , 532 N.W.2d 559, 559 (Minn. 1995) (v acating second-degree assault conviction because the defendant was also convicted of first-degree assault). Therefore, Engel’s second-degree assault convicti on must be vacated. Restitution Engel argues that the restitution orders mu st be vacated because they were issued without a hearing and without any indication th at the district court considered her ability to pay. A district court has broa d discretion to aw ard restitution. State v. Tenerelli , 598 N.W.2d 668, 671 (Minn. 1999). This court reviews a district court’s decision for abuse14 of discretion. State v. Miller , 842 N.W.2d 474, 477 (Minn. App. 2014), review denied (Minn. Apr. 15, 2014). When determining restitution, district courts shall cons ider “the income, resources, and obligations of the defendant.” Minn. Stat . § 611A.045, subd. 1(a )(2) (2012). District courts are not required to issue specific fi ndings on the defendant’s ability to pay. State v. Jola , 409 N.W.2d 17, 20 (Minn. App. 1987). A defendant may challenge restitution, “but must do so by reque sting a hearing within 30 days of receiving written notification of the amount of restitution requested, or w ithin 30 days of sent encing, whichever is later.” Minn. Stat. § 611A. 045, subd. 3(b) (2012). The hearing request must be in writing and filed with the court administrator. Id. Restitution may not be challenged after the 30-day time period. Id. Here, the district court left restitu tion open for 30 days, stating that it was contemplating having a restituti on hearing to determine Engel’s ability to pay. Engel did not address restitution at sentencing. On March 16, 2015, R.G. filed a request for restitution. The district court entered a res titution order on April 1 but amended its order on April 17. Engel neither filed an affidavit nor requested a hearing to dispute restitution. Appellate courts typically do not consider matt ers that were not argued to and considered by the district court. Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996); see State v.
Bauer , 776 N.W.2d 462, 480 (Minn. App. 200 9) (“Because Bauer failed to challenge restitution before the district court, his claim is procedurally barred.”), aff’d , 792 N.W.2d 825 (Minn. 2011). Therefore, we will not consider Engel’s restitution claim. Affirmed in part, reversed in part, and remanded.