                        This opinion will be unpublished and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
                                   A15-1522

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                    Dionte Gosa,
                                     Appellant.

                                Filed August 1, 2016
                                      Affirmed
                                Smith, John, Judge *

                           Hennepin County District Court
                              File No. 27-CR-14-1203


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Smith, Tracy M., Presiding Judge, Worke, Judge, and

Smith, John, Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

SMITH, JOHN, Judge

       We affirm appellant’s judgment of conviction of third-degree criminal sexual

conduct, because the district court (1) did not abuse its discretion by excluding evidence

regarding alcohol-induced blackouts; (2) did not plainly err when it excluded a hearsay

statement by the victim; and (3) did not abuse its discretion by denying appellant’s motion

for a downward dispositional departure.

                                          FACTS

       On December 21, 2013, B.P., her twin sister, and other friends attended a party at a

friend’s home in Minneapolis. They arrived around 9:00 or 10:00 p.m. B.P. consumed

alcohol and became intoxicated. Around 11:00 or 11:30 p.m., B.P. went upstairs. B.P.’s

twin sister and another friend followed B.P. upstairs to make sure she was okay. B.P. laid

down on a couch in an upstairs room. Appellant Dionte Gosa was in the room watching a

movie. B.P. and her twin sister had met appellant once before at a party at the same house.

B.P.’s twin sister told appellant that B.P. wanted to lie down, and asked appellant if she

could trust him to be in there with B.P. Appellant indicated that he could be trusted.

       According to appellant, after the twin sister and her friend left, B.P. began

“grind[ing] her body on [him,]” and they proceeded to have consensual sexual intercourse.

       According to B.P., she was passed out and woke up facing the couch cushions with

her pants pulled down to her knees. Appellant was behind her and she felt his penis in her

vagina. She told appellant to stop four times, which he did only after she told him she

needed to throw up. She ran to the bathroom and appellant followed her, but she asked


                                             2
him to leave and get her sister. While in the bathroom, B.P. repeatedly told her friends and

her twin sister that appellant raped her. B.P.’s twin sister then asked appellant if he touched

B.P. or slept with B.P. Appellant initially said he did not, but then said “she wanted it.”

       B.P. left the party with her twin sister and a friend and stayed at the friend’s home

for the remainder of the night. The next day B.P. went to the hospital and was examined

by a nurse who took samples for a rape kit. B.P. reported feeling sore, and the nurse found

a tear in her vagina consistent with blunt force trauma while B.P. was lying on her side

when penetration occurred. Semen on a cervical swab contained DNA consistent with a

DNA sample provided by appellant.

       Based on those events, appellant was charged with one count of third-degree

criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(d). Appellant was

found guilty as charged by a jury. Appellant was sentenced to a presumptive sentence of

48 months in prison plus 10 years of conditional release.

                                      DECISION

                                              I.

       Under the due process clauses of the Fourteenth Amendment of the United States

Constitution and Article I, section 7 of the Minnesota Constitution “every criminal

defendant has the right to be treated with fundamental fairness and ‘afforded a meaningful

opportunity to present a complete defense.’” State v. Richards, 495 N.W.2d 187, 191

(Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532,

(1984)). “Although the right to present witnesses is constitutionally protected, the accused

‘must comply with established rules of procedure and evidence designed to assure both


                                              3
fairness and reliability in the ascertainment of guilt and innocence.’” Id. at 195 (quoting

Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049 (1973)). “Evidentiary

rulings rest within the sound discretion of the [district] court and will not be reversed absent

a clear abuse of discretion. On appeal, appellant has the burden of establishing that the

[district] court abused its discretion and that appellant was thereby prejudiced.” State v.

Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).

Exclusion of “lay” testimony about alcohol-induced blackouts

       Appellant argues the district court abused its discretion by excluding testimony by

a lay person about alcohol-induced blackouts, and he was prejudiced because he was

denied the opportunity to present a complete defense.

        Before the start of trial, appellant sought to introduce general testimony about

alcohol-induced blackouts from a person who had no knowledge of the facts of the case.

He argued he should be permitted under Minnesota Rule of Evidence 701 to admit

testimony of a lay person about his experiences with alcohol-induced blackouts. Appellant

argued that under rule 701

              [A] person who has direct experience with their own history of
              alcohol use and abuse and blackout can testify about what a
              blackout is like, here’s what happens . . . when I blackout.
              Here’s . . . what the experience is like for me. Certainly he can
              be cross-examined on that. He obviously isn’t going to say
              anything about the complaining witness in this case, doesn’t
              know anything about it, doesn’t know anything about the case
              but I think his experiences are based on his perception and
              relevant to a fact at issue and so I think we have to be allowed
              to . . . have a lay witness testify about that.




                                               4
      The court noted that evidence about alcohol-induced blackouts was relevant to the

case and that appellant would be allowed to question the victim about alcohol-induced

blackouts and would be allowed to question the nurse who examined B.P. about her general

knowledge related to alcohol-induced blackouts. The court also indicated it may entertain

admitting testimony from an expert about alcohol-induced blackouts. The court allowed

for an afternoon recess to provide appellant an opportunity to locate an expert. However,

the court indicated it would not allow “a lay person to testify about their knowledge or

experience with the use of alcohol or controlled substances.” The court reasoned that

             Rule 701 applies to lay witnesses that have relevant
             information about a particular case, given their opinion, given
             their observations . . . of something relevant in the case. . . .
             [T]he rule does not allow for just hypotheticals by lay
             witnesses. It basically allows a lay person to describe objective
             observations to what he or she saw in a particular moment
             related and relevant to the case at hand and that’s not what we
             have here. Therefore for that reason I’m not going to allow a
             lay person without specific knowledge of the case or
             circumstances of the case to testify as to blackouts or the use
             of alcohol.

A district court possesses “wide latitude” to impose “reasonable limits” on evidence. State

v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995). A district court has discretion to

exclude marginally relevant evidence. Id.

      The proposed testimony was only of marginal relevance to a jury in this case

because an unrelated lay person’s experience with alcohol-induced blackouts is only

minimally likely to “make the existence of any fact that is of consequence to the

determination of the action more probable or less probable.” Minn. R. Evid. 401. Further,

the rule of evidence on which appellant’s argument rests, Minnesota Rule of Evidence 701,


                                            5
is a rule which limits the admissibility of evidence, not a rule which mandates the

admissibility of evidence. Opinion testimony by a lay witness is limited to opinions which

are (1) “rationally based on the perception of the witness and” (2) “helpful to a clear

understanding of the witness’ testimony or the determination of a fact in issue.” Minn. R.

Evid. 701. “The rule permits testimony by means of opinion . . . when it is based on

firsthand knowledge” and “specific application [of the rule is left] to the discretion of the

trial court.” Id. committee cmt. Appellant sought to introduce the testimony of an

unspecified witness with no firsthand knowledge of B.P.’s alcohol-induced blackout on the

night of the assault. The proposed testimony does not meet the requirements of rule 701

because the witness would not offer an opinion based on his or her own perception that

would be helpful to a clear understanding of the determination of a fact in issue.

       The district court did not abuse its discretion when it excluded the testimony of an

unspecified lay person with no connection to the case about his experience with alcohol-

induced blackouts. Further, appellant was allowed to cross-examine B.P. about her

alcohol-induced blackout on the night in question, and as such, appellant was not deprived

of the right to present a complete defense.

Habit Evidence

       Appellant also argues he was denied the opportunity to present a complete defense

when the district court excluded evidence related to other occasions where B.P. drank

alcohol and blacked out.

       On cross-examination, B.P. was questioned about her level of intoxication on the

night of the assault and then was asked “[a]t other parties where you have drunk before,


                                              6
you also have had periods of black out?” The state objected on the grounds that it was an

“improper question” and the objection was sustained. Later, out of the presence of the jury,

appellant indicated he understood the state’s objection to be on the basis that the question

sought to elicit impermissible character evidence. After hearing arguments, the district

court sustained its ruling.

       Later, appellant argued that the question was admissible as habit evidence under

Minnesota Rule of Evidence 406. Appellant indicated that he intended to elicit testimony

from B.P. that “when I party, I drink. When I drink, I drink too much. When I drink too

much I black out.” The state responded that “the threshold that needs to be met in terms

of bringing [habit] evidence forward” had not been met. The district court again sustained

its ruling.

       Habit evidence is “relevant to prove that . . . conduct . . . on a particular occasion

was in conformity with the habit. . . .” Minn. R. Evid. 406. “Evidence of a habit or routine

practice is relevant because it describes ‘one’s regular response to a repeated specific

situation.’” Ture v. State, 681 N.W.2d 9, 17 (Minn. 2004) (quoting Minn. R. Evid. 406

advisory committee cmt. 1989).

       Applying rule 406 to this case, evidence that B.P. had a habit of blacking out while

drinking would be admissible to prove that on the night of the assault when B.P. drank she

conformed with her habit of blacking out. B.P. acknowledged that she drank alcohol and

that there were parts of the night she did not remember and that the night “was all a blur.”

To the extent that habit evidence was admissible to show that B.P. acted in conformity with

her habit of drinking to the point of blacking out, it is cumulative because B.P.


                                             7
acknowledged that she was blacked out from drinking when the assault occurred. See State

v. Poole, 499 N.W.2d 31, 36 (Minn. 1993) (finding no abuse of discretion where trial court

excluded cumulative habit evidence). The state argues B.P.’s “habit” of blacking out is

irrelevant and unduly prejudicial in nature. Evidence of B.P.’s prior blackouts was only of

marginal relevance to the case because B.P. acknowledged she was blacked out on the

night in question. At trial the state raised a concern that admission of the evidence was

likely to “besmirch” B.P. See State v. Carpenter, 459 N.W.2d 121, 125 (Minn. 1990)

(discussing the concern of “besmirching” the character of a rape victim). The district court

did not abuse its discretion when it excluded evidence of B.P.’s prior blackouts. Further,

appellant was allowed to cross-examine B.P. about the relevant blackout, her blackout on

the night in question. As such, appellant was not denied his right to present a complete

defense.

                                              II.

       Appellant argues the district court plainly erred when it sustained the state’s

objection to appellant’s attempt to elicit testimony from a witness regarding a statement

made by the victim on the way to the party. At trial, after the jury had started to deliberate,

defense counsel made the following record:

              During the testimony of [R.G.], I attempted to ask him about a
              statement that [B.P.] made in the car on the way to the party,
              and I made an offer of proof off the record that what he would
              say is that she would say that she said on the way to the party,
              “I’m going to [f***] with Dionte tonight.” 1 And the State

1
  Defense counsel asked R.G. “What were people saying about the party?” The state
objected on the grounds that it was hearsay and after an off-the-record conversation the
district court sustained the objection.

                                              8
              objected to that to elicitation of that, and the Court sustained
              the objection. I don’t think it’s hearsay because it’s not offered
              for the truth of it.

       Appellant does not argue that the proposed testimony was not hearsay. Instead,

appellant argues it was hearsay admissible under the catchall exception, Minnesota Rule

of Evidence 807, and the district court erred when it excluded the statement. Appellant did

not raise this theory of admissibility before the district court, and therefore we review for

plain error. See Minn. R. Evid 103 committee cmt. 1989 (noting “the existing practice of

requiring not only a timely objection, but a specific objection unless the context of the

question makes the grounds for objection obvious”); see also State v. Manthey, 711

N.W.2d 498, 504 (Minn. 2006) (noting because of the “complexity and subtlety of the

operation of the hearsay rule and its exceptions,” objections are particularly critical to give

a party an “opportunity to establish that some or all of the statements were admissible under

one of the numerous exceptions to the hearsay rule”). “[U]nder the plain-error doctrine,

we may consider the evidentiary issues if there is (1) error, (2) that is plain, and (3) that

affects the defendant’s substantial rights.” State v. Hollins, 765 N.W.2d 125, 131 (Minn.

App. 2009). “The party asserting plain error has the burden of establishing all three

elements.” Id. An error is plain if it is “clear and obvious; usually this means an error that

violates or contradicts case law, a rule, or an applicable standard of conduct.” State v.

Matthews, 779 N.W.2d 543, 549 (Minn. 2010).

       Hearsay is an out-of-court statement offered as evidence to prove the truth of the

matter asserted. Minn. R. Evid. 801(c). Generally, hearsay is inadmissible unless it fits

under one of a number of exceptions, which generally reflect the recognized reliability of


                                              9
statements made in certain situations. Minn. R. Evid. 802 (barring admission of hearsay).

Rule 807 provides that a statement not specifically covered by the other exceptions to the

hearsay rule that has “equivalent circumstantial guarantees of trustworthiness” is

admissible if the court determines that (1) “the statement is offered as evidence of a

material fact”; (2) “the statement is more probative on the point for which it is offered than

any other evidence which the proponent can procure through reasonable efforts”; and

(3) “the general purposes of these rules and the interests of justice will best be served by

admission of the statement into evidence.” Minn. R. Evid. 807. However, a statement may

not be admitted unless “the proponent of it makes known to the adverse party, sufficiently

in advance of the trial or hearing, to provide the adverse party with a fair opportunity to

prepare to meet it, the proponent’s intention to offer the statement and the particulars of

it.” Id.

           Appellant argues “the ruling was in error because [Rule 807] permitted the

introduction to the statement,” and “a review of the pertinent factors . . . reveals that the

proffered statement should have been admitted.” However, even if appellant was able to

demonstrate that the statement had the requisite circumstantial guarantees of

trustworthiness, appellant did not comply with the notice requirement of rule 807. Under

rule 807 “a statement may not be admitted . . . unless the proponent of it makes known to

the adverse party, sufficiently in advance of the trial or hearing.” A review of the record

reveals appellant never attempted to admit the statement under the rule.

           Moreover, appellant has not met his burden in demonstrating that any error was

plain. Appellant argues the error was plain because “[i]t is well-settled that a hearsay


                                             10
statement that meets Rule 807’s requirements may be admitted.” However, even though it

is well-settled that statements may be admitted under rule 807 if they meet certain

requirements, appellant does not cite, nor are we aware of, any support for the proposition

that a hearsay statement must be admitted under rule 807. Appellant has not met his burden

in proving the district court plainly erred in excluding B.P.’s statements under the catch-

all hearsay exception.

                                              III.

       Appellant argues the district court abused its discretion by denying his motion for a

downward dispositional departure where substantial and compelling circumstances existed

warranting a departure. Appellant was sentenced to 48 months in prison, the presumptive

sentence for criminal sexual conduct in the third degree in violation of Minn. Stat.

§ 609.344, subd. 1(d), for an offender with no criminal history points. Minn. Sent.

Guidelines 4.B (2014). “This court will not generally review a district court’s exercise of

its discretion to sentence a defendant when the sentence imposed is within the presumptive

guidelines range.” State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010).

        “A sentencing court ‘must pronounce a sentence within the applicable range unless

there exist identifiable, substantial, and compelling circumstances’ that distinguish a case

and overcome the presumption in favor of the guidelines sentence.” State v. Soto, 855

N.W.2d 303, 308 (Minn. 2014) (quoting Minn. Sent. Guidelines 2.D.1). Appellant does

not provide authority to support the proposition that it is an abuse of discretion not to depart

from the guidelines. To the contrary, “a sentencing court can exercise its discretion to

depart from the guidelines only if aggravating or mitigating circumstances are present, and


                                              11
those circumstances provide a substantial and compelling reason not to impose a guidelines

sentence.” Id. (quotations omitted).

       Although a court may depart from the guidelines when substantial and compelling

circumstances are present, State v. Garcia, 302 N.W.2d 643, 657 (Minn. 1981), “it would

be a rare case which would warrant reversal of the refusal to depart.” State v. Kindem, 313

N.W.2d 6, 7 (Minn. 1981) (concluding in a case where the district court did not depart

where there were arguments for departure “the determination whether or not to depart was

clearly a discretionary decision”). A review of the record in the present case reveals the

district court carefully reviewed all of the submissions of the parties related to the

sentencing decision, “thought long and hard” about the decision and “[didn’t] see a reason

to give [appellant] the extraordinary remedy that is a departure.” Appellate courts are

“loath to interfere” with a district court’s imposition of the presumptive sentence. State v.

Law, 620 N.W.2d 562, 564-65 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).

See also State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). The district court did not abuse

its discretion in its sentencing decision.

       Affirmed.




                                             12
