                          This opinion will be unpublished and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                         UNPUBLISHED OPINION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.




                                           15
