This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-1027
State of Minnesota, Respondent,
vs.
Jose Luis Guzman, Appellant.
Filed April 27, 2015 Affirmed Reilly, Judge
Olmsted County District Court File No. 55-CR-10-4829
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney, Rochester, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Kirk, Presiding Judge; Ross, Judge; and Reilly, Judge.
UNPUBLISHED OPINION
REILLY, Judge
Appellant challenges his third-degree felony criminal sexual conduct conviction,
arguing that the district court abused its discretion by allowing into evidence a picture of
appellant’s genitalia and statements from the victim to her coworker, and further arguing that the district court abused its discretion by denying appellant’s motion for a downward
dispositional departure at sentencing. We affirm.
FACTS
In 2009, appellant lived in an apartment in Rochester, Minnesota, with his wife
and two young sons. K.A., a personal care attendant, worked with the family to provide
in-home care to appellant’s five-year-old son, K.G. The Southeastern Minnesota Center
for Independent Living (SEMCIL), an agency that provides independent living services
and personal care assistance to mentally and physically disabled clients in their homes,
employed K.A. K.A. worked approximately 28 hours a week helping K.G. with bathing,
learning the alphabet, counting, and school work.
On December 30, 2009, appellant took a picture of his penis and sent it to K.A.’s
cell phone. K.A. did not ask appellant to send this picture and did not expect it.
Appellant asked K.A. if she received the picture and K.A. “lied to him and told him that
[her] phone didn’t work because [she] didn’t want it to escalate.” Appellant did not send
K.A. any other sexual pictures after that incident.
On March 11, 2010, K.A. arrived at the apartment around noon. Appellant, K.G.,
and K.G.’s mother were present in the home. Appellant was in his bedroom and did not
interact with K.A. Several hours later, K.G.’s mother left the apartment to run errands
and K.G.’s brother returned home from school. Appellant came out of his bedroom and
said something to the children in Spanish and they went into their bedroom, leaving K.A.
alone with appellant.
2 Appellant asked K.A. if she wanted to see something on his phone and showed her
a pornographic video. K.A. told appellant that the video was “disgusting and disturbing”
and she “didn’t want to see it.” Appellant laughed and pulled his chair closer to K.A.’s
chair. Appellant grabbed K.A.’s face and began kissing her, put K.A.’s hand on his
clothed penis, and lifted up her sweatshirt and bra and touched her breasts. Appellant
undid K.A.’s belt and pants and put his hands down her pants and inside her underwear.
Appellant unzipped his pants, “brought his penis out,” and forced her to move her hand
up and down on his penis. Appellant stood up and put his penis against K.A.’s chest.
K.A. told appellant to stop “several, several, several times” and stated that she was
on her menstrual cycle and had a tampon in. K.A. tried to pull away from appellant, but
he grabbed her arm to stop her. Appellant put his finger inside her vagina. K.A. testified
that it “hurt” when he put his fingers inside her vagina because she “had a tampon in” and
it “got lodged way up.” Appellant had his finger in K.A.’s vagina at the same time that
he held K.A.’s hand against his penis, and he ejaculated.
K.A. left the apartment soon afterwards and drove to her cousin’s house. K.A.’s
cousin encouraged her to report the incident to the police, but K.A. was scared that
appellant would “do[] something more” to her. Instead, K.A. called her scheduler at
SEMCIL and left a message asking her to return the call. K.A. also called and left a
voicemail message on SEMCIL’s after-hours telephone line. The SEMCIL scheduler
returned K.A.’s telephone call the following morning and recounted that K.A. sounded
“very upset,” her voice was “shaky,” and she became teary during the conversation. The
scheduler arranged for K.A. to come to the SEMCIL office and call the police.
3 K.A. went to SEMCIL’s office on March 12 to meet with two Rochester police
officers and report the assault. The police officers set up a covert phone call between
K.A. and appellant to gather further information. K.A. called appellant from her cell
phone while the police officers recorded the call and listened in on the conversation.
Appellant admitted to putting his finger inside of K.A.’s vagina. Appellant
acknowledged that he heard K.A. repeatedly ask him to stop, which he did not do. A few
days later, a police officer met with K.A. again to take pictures of bruises that had
developed on her arms over the weekend. K.A. also provided the officer with the
photograph on her cell phone of appellant’s penis. A police officer met with appellant on
March 15. Appellant admitted to engaging in sexual conduct with K.A. but claimed it
was consensual. K.A. did not have contact with appellant’s family after March 11.
The state charged appellant with felony third-, fourth-, and fifth-degree criminal
sexual conduct. Appellant waived an omnibus hearing and entered a not-guilty plea.
Appellant moved to suppress evidence that he texted K.A. a photograph of his penis and
also moved to suppress alleged-hearsay testimony regarding the conversation between
K.A. and the SEMCIL scheduler on March 12. The district court denied appellant’s
motions. A jury trial was held on March 4-6, 2013, and the jury returned a verdict
finding appellant guilty of each of the three sexual conduct charges. The district court
ordered appellant to report to community corrections for a presentence investigation and
psychosexual evaluation and return for sentencing in May 2013. Appellant was placed
on electronic home monitoring pending sentencing.
4 The May 2013 presentence investigation report provided that third-degree criminal
sexual conduct is a severity-level C offense with a presumptive commitment to the
commissioner of corrections for a period of 62 months, with a lower range of 53 months
and an upper range of 74 months. Appellant moved for a downward dispositional
departure from the sentencing guidelines, claiming that he was “particularly amenable to
probation” and sex offender treatment and was remorseful for his conduct. The
sentencing hearing was held on May 30. Appellant failed to appear for the hearing and
appellant’s attorney indicated that he did not know where his client was. The district
court issued a bench warrant for appellant’s arrest. Appellant was ultimately arrested in
February 2014. The district court held a hearing and revoked appellant’s conditional
release pending sentencing.
The sentencing hearing was held in March 2014. The district court stated on the
record that appellant destroyed his electronic home monitoring bracelet and “absconded
from custody.” Appellant’s attorney argued that appellant “may well be successful at sex
offender treatment” and sought a downward departure from the presumptive sentence.
The district court denied appellant’s departure motion based on its determination that
appellant was not “particularly suitable to individualize[d] treatment in a probationary
setting,” and that there were not “substantial and compelling circumstances” justifying
departure. The district court adjudicated appellant guilty on the third-degree criminal
sexual conduct offense and committed him to the commissioner of corrections for a
period of 66 months with a ten-year conditional release period.
This appeal followed.
5 DECISION
I.
Appellant challenges two of the district court’s evidentiary rulings, arguing that
the cumulative prejudicial effect of the evidence substantially affected the verdict. “The
admission of evidence at trial is within the broad discretion of the district court and will
not be reversed absent a clear abuse of discretion.” State v. Thompson, 788 N.W.2d 485,
495 (Minn. 2010). Appellant bears the burden of establishing that the district court
abused its discretion in admitting the challenged evidence and that he was prejudiced
thereby. State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997). Reversal is only warranted
when the error “substantially influences the jury’s decision.” Id.
A.
We first consider appellant’s argument that the district court abused its discretion
by admitting into evidence a photo of his genitalia sent from appellant’s cell phone to
K.A.’s cell phone because it was more prejudicial than probative and not necessary to
prove an element of the crime. At the suppression hearing, the state argued that sexual
motive was an element of the fourth-degree criminal sexual conduct charge and the
evidence “tend[ed] to prove the [appellant’s] sexual or aggressive motive” toward K.A.
Minn. Stat. § 609.341, subd. 11(a) (2012) (defining fourth-degree “sexual contact” as an
act committed without the complainant’s consent and with “sexual or aggressive intent”).
The district court agreed with the state and denied appellant’s suppression motion.
Under Minnesota Rule of Evidence 403, relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice . . . or
6 needless presentation of cumulative evidence.” Rule 403 favors admission of relevant
evidence, “as the probative value of the evidence must be ‘substantially’ outweighed by
prejudice.” State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005). “Evidence is relevant
and has probative value when it, in some degree, advances the inquiry.” Id. A district
court has broad discretion in determining whether to admit a photograph into evidence
and we will not reverse the district court’s decision absent an abuse of discretion. State v.
Dame, 670 N.W.2d 261, 264 (Minn. 2003).
Appellant argues that the December 2009 photograph was not relevant because it
was “too far removed” from the March 2010 offense to be probative of intent. A fact is
relevant if it, “in connection of other facts, warrants a jury in drawing a logical inference
assisting, even though remotely, the determination of the issue in question.” Schulz, 691
N.W.2d at 478. Additionally, rule 403 requires the district court to consider whether the
probative value of disputed evidence is substantially outweighed by the danger of unfair
prejudice. Minn. R. Evid. 403. Unfair prejudice “is not merely damaging evidence, even
severely damaging evidence; rather, unfair prejudice is evidence that persuades by
illegitimate means, giving one party an unfair advantage.” Schulz, 691 N.W.2d at 478.
Here, the district court determined that the picture was relevant “to the issue of
aggressive intent” and was not unfairly prejudicial “considering the severity of the
offense and the [s]tate’s high burden of proving . . . aggressive intent.” We conclude that
this decision fell within the district court’s broad discretion.
Further, the district court gave a cautionary instruction prior to publishing the
photograph to the jury to establish that the evidence would be presented solely for the
7 purpose of determining whether appellant’s acts were committed with sexual or
aggressive intent. The use of a cautionary instruction mitigated the danger that the
evidence would be misused. State v. Diggins, 836 N.W.2d 349, 358 (Minn. 2013). An
appellate court defers to a district court’s evidentiary rulings because it “stands in the best
position to evaluate the prejudicial nature of evidence.” Id. at 357. We hold that the
district court did not abuse its discretion by allowing the photograph into evidence.
B.
We next turn to appellant’s claim that the district court abused its discretion by
admitting into evidence K.A.’s statement to her coworker because it did not fall within an
exception to the hearsay rule. The state argued that the statement was admissible under
evidentiary rule 801(d)(1)(B) as a prior consistent statement. The district court agreed
with the state and allowed the coworker to testify about her telephone conversation with
K.A. on March 12.
Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted. Minn. R. Evid. 801(c). Hearsay is generally not admissible at trial. Minn. R.
Evid. 802. However, an out-of-court statement offered to prove the truth of the matter
asserted may be admissible if it is covered by an exception to the hearsay rule or is
exempted from the definition of hearsay. State v. Robinson, 699 N.W.2d 790, 794 (Minn.
App. 2005), aff’d, 718 N.W.2d 400 (Minn. 2006). Under rule 801(d)(1)(B), a witness’s
prior statement that is consistent with her trial testimony is admissible as non-hearsay
evidence “if the statement is helpful to the trier of fact in evaluating the witness’s
credibility, and if the witness testifies at trial and is subject to cross-examination about
8 the statement.” State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied
(Minn. Feb. 24, 2000); Minn. R. Evid. 801(d)(1)(B). Before a statement may be admitted
under rule 801(d)(1)(B), the district court must first make a “threshold determination”
that the witness’s credibility has been challenged. Bakken, 604 N.W.2d at 109. The
district court must then inquire into whether the out-of-court statement was consistent
with the witness’s trial testimony. Id. Lastly, the district court must evaluate whether the
statement would “be helpful to the trier of fact in evaluating the witness’s credibility.”
Id.
Appellant argues that the coworker’s testimony was not admissible because the
district court did not make a formal finding that K.A.’s credibility had been attacked.
Before a prior consistent statement can be admitted, “the witness’ credibility must have
been challenged, and the statement must bolster the witness’ credibility with respect to
that aspect of the witness’ credibility that was challenged.” Nunn, 561 N.W.2d at 909.
The state argues that K.A.’s credibility “was the entire case.” We agree. In Bakken, this
court determined that the victim-witness’s credibility “was central to the case” where she
“was the only witness to present firsthand evidence” against the accused. 604 N.W.2d at
109. This case is analogous.
Appellant’s attorney made several references in his opening statement calling
K.A.’s credibility into question. Appellant’s attorney stated that he would present to the
jurors “a number of deceitful activities that [K.A.] engaged in” regarding a purported
social friendship between appellant and K.A., and stated that K.A. “[l]ied to [appellant]
on three or four different occasions” and exhibited a “consistent pattern of deceit.”
9 Appellant’s attorney told the jury that “[w]e have basically a he said/she said scenario.”
Several times during cross-examination, appellant’s attorney asked K.A. if she had lied to
appellant. Appellant’s attorney challenged K.A.’s credibility during opening statements
and on cross-examination, and her credibility was critical to the state’s case. See, e.g.,
State v. Grecinger, 569 N.W.2d 189, 193 (Minn. 1997) (stating that a victim’s credibility
“can be attacked during cross-examination of the victim or even during opening
statements”). The credibility factor is satisfied.
We also determine that the prior statement and the trial testimony are consistent
with one another. Bakken, 604 N.W.2d at 109. Appellant argues that K.A.’s testimony
was not consistent with the statements made to her coworker because the statements to
the coworker were more general and did not contain the same level of detail present in
her trial testimony. The trial testimony and the prior statement “need not be verbatim.”
Id. In Bakken, the witness’s prior statement and testimony were consistent “as to the
general location of the assault, the identity of the perpetrator, and the nature of the acts of
penetration,” but inconsistent with respect to the defendant’s “alleged threat, use of a
knife, cutting of [the victim’s] arm, and ripping off of [the victim’s] clothes.” Id. at 109-
10. We determined that the inconsistencies in Bakken “were not minor discrepancies”
and did not satisfy the consistency-requirement of rule 801(d)(1)(B). Id. Here, in
contrast, any discrepancies between K.A.’s statements to her coworker and her trial
testimony are minor.
Lastly, we hold that the prior statement was helpful to the trier of fact in
evaluating K.A.’s credibility. Id. at 109. “[A] prior consistent statement might bolster
10 credibility by showing a fresh complaint, obviating an improper influence or motive,
providing a meaningful context, or demonstrating accuracy of memory.” Id. The district
court did not specifically determine that the prior statement would be helpful to the jury.
However, appellant’s defense rested solely on the claim that the sexual contact between
appellant and K.A. was consensual. The coworker’s testimony that K.A. was “very
upset,” that her voice was “shaky,” and that she sounded as though she had been crying
bolstered K.A.’s credibility because it provided context and demonstrated accuracy of
memory. See, e.g., id. at 110 (determining that prior statement bolstered witness’s
credibility where witness demonstrated a “sketchy recollection at trial”).
We determine that the three Bakken factors are satisfied and the district court did
not abuse its discretion by admitting K.A.’s statement to her coworker into evidence.1
II.
Appellant contends that the district court abused its discretion by denying his
motion for a downward dispositional departure because substantial and compelling
circumstances existed and appellant was a candidate for sex offender treatment and
amenable to such treatment.2 We review a district court’s refusal to grant a dispositional
departure from the sentencing guidelines for an abuse of discretion, State v. Bertsch, 707
N.W.2d 660, 668 (Minn. 2006), and we will affirm the imposition of a presumptive
1 Because we conclude that K.A’s statement to her coworker is a prior consistent statement, we do not reach appellant’s arguments regarding whether the statement would qualify as a present sense impression or an excited utterance. 2 We have also considered the arguments in appellant’s pro se brief and conclude that they have no legal merit.
11 sentence “when the record shows that the sentencing court carefully evaluated all the
testimony and information presented before making a determination.” State v. Johnson,
831 N.W.2d 917, 925 (Minn. App. 2013), review denied (Minn. Sept. 17, 2013).
The Minnesota Sentencing Guidelines prescribe a sentence or a range for the
sentence that is “presumed to be appropriate.” State v. Soto, 855 N.W.2d 303, 308
(Minn. 2014) (citing Minn. Sent. Guidelines 2.D.1). The district court “must pronounce a
sentence within the applicable range unless there exist identifiable, substantial, and
compelling circumstances” distinguishing the case and overcoming the presumption in
favor of the presumptive disposition. Id. Here, the Minnesota Sentencing Guidelines
classify appellant’s felony third-degree criminal sexual conduct conviction as a severity-
level C offense with a term of commitment ranging from 53 to 74 months and a
presumptive commitment of 62 months. Minn. Sent. Guidelines IV (2009). The district
court sentenced appellant to 66 months, within the presumptive range.
Appellant argues that substantial and compelling circumstances supporting
departure existed because he was willing to attend sex offender treatment, was “a
marginally appropriate candidate” for sex offender treatment, was young at the time of
the offense, did not have an extensive criminal record, cooperated with the police, and
was respectful during court hearings. The sentencing guidelines set forth a “nonexclusive
list” of mitigating factors that can justify a dispositional departure. Minn. Sent.
Guidelines II.D.2. Minnesota courts may also be guided by several other factors, known
as Trog factors, to determine if a defendant is particularly amenable to individualized
treatment in a probationary setting. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
12 These factors include “the defendant’s age, his prior record, his remorse, his cooperation,
his attitude while in court, and the support of [the defendant’s] friends and/or family.” Id.
However, Minnesota law is clear that the presence of a mitigating factor “[does] not
obligate the court to place defendant on probation or impose a shorter term than the
presumptive term.” State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).
The record shows that the district court carefully considered the factors
undergirding appellant’s dispositional departure request and determined that they did not
favor appellant. The district court acknowledged that appellant was young, had special-
needs children, was the sole provider for his family, and had “relatively little criminal
history.” But the district court also determined that appellant had not displayed genuine
remorse or accepted responsibility for his actions, did not cooperate during the
proceedings, was unlikely to cooperate with probation, and intentionally defied court
orders.
The district court noted that after the jury convicted appellant of all three charges,
the district court “gave [appellant] the opportunity to be released” rather than taking him
directly into custody pending sentencing. The district court described this as
“intentional” because it “wanted to see how [appellant] would do out in the community
pending sentencing” in light of the pending departure motion. The district court informed
appellant that “how you would have performed pending sentencing potentially would
have been helpful to [the court] in determining whether or not to grant the departure
motion.” The district court found that:
13 You destroyed the bracelet, you absconded from custody, and it was law enforcement that had to find you, secure you and bring you back to this county. But for law enforcement, you would still be out in the community avoiding this process. Everything that you just said I don't find sincerity in it at all. You were given an opportunity by me. You were given an opportunity by Community Corrections to impress on them how much you would be willing and able to comply with the expectations of probation, to take responsibility for the offense rather than revictimize the victim . . . . Not only have you not taken responsibility for what you have done, you have deliberately and intentionally revictimized the victim.
The district court concluded that “[t]his departure motion is about whether or not
you are particularly suitable to individualize[d] treatment . . . and your motion is denied.”
Appellant claims the district court “based its denial of [his] dispositional departure
motion mainly on his destruction of the electronic home monitoring device and his failure
to show up for his initial sentencing date.” But appellant’s argument ignores facts in the
record. During sentencing, the district court made clear that its decision to deny
appellant’s departure request was “based on [the] proceedings as a whole, the arguments
of the . . . attorneys, the [presentence investigation report] . . . and all of the evaluations
and interviews that were conducted that went into the same.” Moreover, the presentence
investigation report—completed before appellant absconded from custody—supports the
district court’s decision. The report stated that the “nature of the current offense is
significant given the force used to facilitate the assault” and cautioned that appellant “has
taken no ownership for his offense and has placed significant blame on the actions of the
victim.” With regard to appellant’s amenability for treatment, the presentence
14 investigation report provided that appellant was “not appropriate for programming” and
was only a “marginally appropriate candidate for treatment.”
Only the “rare case” merits reversal based on the district court’s refusal to depart
from the sentencing guidelines. Johnson, 831 N.W.2d at 925. This is not a “rare case”
compelling this court to vacate and reverse the district court’s sentencing order. The
district court considered the mitigating factors and the Trog factors and concluded that
appellant was not entitled to a downward departure from the sentencing guidelines. The
record, taken as a whole, supports the district court’s decision that there were not
“substantial and compelling reason[s]” supporting a dispositional departure in this case,
Soto, 855 N.W.2d at 314, and we affirm.
Affirmed.