State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1902

State of Minnesota,
Respondent,

vs.

Martin Kwaze Gbor,
Appellant.

Filed September 18, 2017
Affirmed in part and remanded
Schellhas, Judge

Hennepin County District Court
File No. 27-CR-16-5440

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas , Presiding Judge; Ross, Judge; and
Kalitowski, Judge.
*

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

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his convictions of cr iminal sexual conduct, arguing that the
district court committed reversible error by (1) excluding certain evidence in violation of
his constitutional right to present a complete defense, and (2) entering multiple convictions
in violation of Minn. Stat. § 609.04 (2016). We affirm in part and remand.
FACTS
On an evening in February 2016, 12-yea r-old M.G.-B. was at home with her father,
appellant Martin Kwaze Gbor; her mother, T.G. ; and her 9-year-old sibling, N.G. Gbor
found M.G.-B. in bed exchanging messages with her boyfriend on her cell phone. Gbor
became angry and took the phone from M.G.-B ., and they argued. Within a few minutes,
M.G.-B. spoke with T.G. privately and disclosed that Gbor had sexually abused her. T.G.
then called 911 and reported a domestic dispute. Two police officers arrived at the home
and intervened in the dispute. After M.G.-B. told one of the officers that she did not feel
safe with Gbor, that office r spoke with T.G. privately, and T.G. reported M.G.-B.’s
disclosure of sexual abuse by Gbor. The o fficer forwarded the sexual-abuse report for
investigation. Later that month, CornerHo use staff interviewed M.G.-B., who disclosed
multiple, escalating incidents of sexual contact and penetration by Gbor.1

1 “CornerHouse is a child-advocacy center that , among other things, conducts forensic
interviews of children who allegedly have be en sexually abused.” State v. Wembley, 712
N.W.2d 783, 790 (Minn. App. 2006), aff’d, 728 N.W.2d 243 (Minn. 2007).

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Respondent State of Minnes ota charged Gbor with one count of first-degree
criminal sexual conduct (sexual penetration with complainant under 13 years old and more
than 36 months younger than actor), one count of first-degr ee criminal sexual conduct
(genital-to-genital sexual contact with complainant under 13 years old and more than 36
months younger than actor), one count of second-degree crim inal sexual conduct (sexual
contact with complainant under 13 years old and more than 36 months younger than actor),
and one count of seco nd-degree criminal sexual conduct (multiple incidents of sexual
contact with complainant under 16 years old with whom actor has significant relationship).
After a lengthy trial, a jury fo und Gbor guilty as charged, and the district court sentenced
Gbor to 172 months in prison on one count of first-degree criminal sexual conduct. This
appeal follows.
D E C I S I O N
I.
Gbor testified at trial in his own defense and repeated ly denied having had any
sexual contact with M.G.-B. To support the de fense theory that M.G.-B. was fabricating
the sexual-abuse allegations, Gbor testified as follows:
DEFENSE COUNSEL: Did anything happen when you went
to [M.G.-B.’s] room?
GBOR: Yes.
DEFENSE COUNSEL: What happened?
GBOR: The text messages on [M.G.-B.’s] phone was bad
words. Your Honor, is it okay I say them?
THE COURT: If that helps your testimony, you can proceed.
GBOR: It was chocolate clit, lick, put Kool-Aid on my dick.
PROSECUTOR: Objection, Your Honor.
THE COURT: Basis?
PROSECUTOR: Hearsay.

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THE COURT: Overruled.
GBOR: “Lick my pussy. I will lick your dick. Oh, you like my
titties. I will suck on your titties.”
PROSECUTOR: Objection. May we approach, Your Honor?
THE COURT: You may.
(A discussion was held outsid e the hearing of the jury
members.)
THE COURT: Objection overruled.
. . . .
DEFENSE COUNSEL: So when you saw these series of
words, did it raise any concern to you?
GBOR: Yes. . . . I say, “I need the phone from you because I
don’t like what I’m seeing. I need to show this to your mom.”
So she said, “No.” She would not give me the phone. But she
end up giving me the phone. . . .
. . . .
DEFENSE COUNSEL: What . . . did you do?
GBOR: I decided . . . to go show it to [T.G.]
DEFENSE COUNSEL: And what did [M.G.-B.] do?
GBOR: Screaming through the whole wall.

Shortly thereafter, the court excused the jury and stated:
[U]pon the statements of the w itness, Mr. Martin Gbor, with
regard to the reason why he went to secure the cell phone, there
was an objection and the par ties asked to approach. The
objection was based off of the rape shield. The Court overruled
the objection because the testimony was describing the reason
why the person was taking this action. . . .

[U]pon further reflection, I think this is a reference to the
conduct of [M.G.-B.], so I’m going to sustain the objection. . . .

. . . .

Mr. Gbor, what you can do, is if you feel like you need to
reference back, you can just say that they were inappropriate
text messages or you can say they were text messages that you
didn’t approve or something lik e that without actually saying
what they were.

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And just before the close of evidence, the court gave the fo llowing curative instruction:
“Members of the jury, I have an instruction for you. You are to disregard the defendant’s
testimony concerning the specific content of the messages that he said he saw on [M.G.-
B.]’s cell phone.” The court rejected Gbor’s request to reconsider its ruling on this matter.
On appeal, Gbor argues that the district court committed reversible error because
(1) the rape-shield law does not apply to the excluded evidence; (2) even if the rape-shield
law applies to the excluded evidence, admission of that evidence was necessary to vindicate
Gbor’s constitutional right to present a complete defense; and (3) a reasonable possibility
exists that the verdict would have been different but for th e erroneous exclusion of the
evidence. The state counters that the evidence was properly excluded and that any error in
its exclusion did not affect the verdict.
“Evidentiary rulings are reviewed for an abuse of discretion, even when a
constitutional violation is alleged.” State v. Wenthe, 865 N.W.2d 293, 306 (Minn. 2015).
“A violation of a criminal defendant’s constitutional rights necessitates a new trial unless
the violation was harmless beyond a reasonable doubt.” Id. For an evidentiary error “[t]o
be harmless beyond a reasonable doubt, the jury’s verdict must be surely unattributable to
the error.” State v. Lilienthal, 889 N.W.2d 780, 787 (Minn. 2017) (quotation omitted).
The rape-shield statute provid es that, in prosecutions fo r criminal sexual conduct,
“evidence of the victim’s pr evious sexual conduct shall not be admitted” unless the
evidence is relevant to a consent or alterna tive-actor defense and “the probative value of
the evidence is not substantially outweighed by its inflammatory or prejudicial nature.”
Minn. Stat. § 609.347, subd. 3 (2016); see also Minn. R. Evid. 412 (same). The statute and

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rule also provide procedural requirements for admission of eviden ce of the victim’s
previous sexual conduct. Minn. Stat. § 609.347, subd. 4 (2016); Minn. R. Evid. 412. “The
rape-shield law serves to emphasize the general irrelevance of a victim’s sexual history,
not to remove relevant evidence from the jury’s consideration.” Wenthe, 865 N.W.2d at
306 (quotation omitted). The ra pe-shield law therefore allows sexual-history evidence
“when admission is constitutionally required by the defendant’s right to due process, his
right to confront his accusers , or his right to offer evid ence in his own defense.” Id.
(quotation omitted).
Here, with little analysis evident in the record, the di strict court concluded that
Gbor’s testimony regarding the content of the messages between M.G.-B. and her
boyfriend constituted evidence of M.G.-B.’s previous sexual conduc t. The court did not
expressly consider whether the evidence nevertheless was admissible under the rape-shield
law or as necessary to vindicate Gbor’s constitutional right to present a complete defense.
On appeal, Gbor insists that “[t]he content of M.G.-B.’s text-message exchange was not
just relevant and admissible, it was critical to the success of Gbor’s defense,” because
“[e]vidence that M.G.-B.’s privacy had been invaded and Gbor was about to reveal to
[T.G.] M.G.-B.’s sexually-explicit interaction with her boyfriend . . . explained M.G.-B.’s
motive to falsely accuse Gbor to divert attention from her own misconduct.”
We need not decide whether the district court abused its discretion in excluding
Gbor’s testimony regarding the content of th e cell-phone messages between M.G.-B. and
her boyfriend because we conclude that the ju ry’s verdict is surely unattributable to any
error in the exclusion of that testimony. The court gave Gbor great la titude in presenting

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his defense theory of fabrication, which he claimed was motivated in part by the cell-phone
dispute with M.G.-B. The jury heard testimony about that dispute from Gbor, T.G., N.G.,
and M.G.-B., who admitted that she made her initial disclosure of sexual abuse by Gbor
during a dispute with him about her nighttime cell-phone use. M.G.-B. testified about the
dispute as follows:
DEFENSE COUNSEL: Now, what led to the 2016 incident
was because your daddy came into your room and you were
still awake; is that correct?
M.G.-B.: Yes.
DEFENSE COUNSEL: And you testify that the light in that
room was turned off; is that correct?
M.G.-B.: Yes.
DEFENSE COUNSEL: The light was off but you were awake
and you were messing with your phone; is that correct?
M.G.-B.: Yes, sir.
DEFENSE COUNSEL: And your dad took your phone; is that
correct?
M.G.-B.: Yes, sir.
DEFENSE COUNSEL: And you testified that you got mad; is
that correct?
M.G.-B.: Yes, sir.
DEFENSE COUNSEL: And when you got mad, you called
your mommy to come in; is that correct?
M.G.-B.: Yes, sir.
DEFENSE COUNSEL: That you want to tell her something; is
that correct?
M.G.-B.: Yes, sir.
. . . .
DEFENSE COUNSEL: Were you mad?
M.G.-B.: Yes.
DEFENSE COUNSEL: Were you angry?
M.G.-B.: Yes.
. . . .
DEFENSE COUNSEL: [Y]ou were exchanging messages with
[your boyfriend] on your cell phone [that night]; is that correct?
M.G.-B.: Yes, sir.
DEFENSE COUNSEL: And that was why you did not want
your father to take your cell phone; is that correct?

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M.G.-B.: Yes, sir.
DEFENSE COUNSEL: And that was why you were very mad
at [sic]; is that correct?
M.G.-B.: Yes, sir.
DEFENSE COUNSEL: And you called your mom because
you wanted revenge; is that correct?
PROSECUTOR: Objection, Your Honor. This is
argumentative.
THE COURT: Overruled.
M.G.-B.: Yes, sir.

Gbor did not proffer any ev idence, such as photographs of the messages or cell-
phone records, to corroborate his testimony that the messages he saw on M.G.-B.’s cell
phone were sexually explicit. And a police investigator testified that she found no
“inappropriate [messages] or messages of a sexual nature” when she examined M.G.-B.’s
cell phone. On these facts, we conclude that a ny error in the district court’s exclusion of
evidence of the content of the messages between M.G.-B. and her boyfriend did not
reasonably impact the jury’s decision to cred it M.G.-B.’s allegations of sexual abuse by
Gbor. See Lilienthal, 889 N.W.2d at 787 (“In evaluating whether an [evidentiary] error was
harmless, [appellate courts] . . . look to whether the error reasonably . . . impacted upon the
jury’s decision.” (quotations omitted)).
II.
Although the district court imposed sent ence on only one count of first-degree
criminal sexual conduct, the court’s sentencing order and warrant of commitment reflects
that the court convicted Gbor on each of the four counts of criminal sexual conduct. Gbor
argues that the court violated Minn. Stat. § 609.04 by entering multiple convictions against
him; the state concedes such violation; and we agree with Gbor and the state.

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The date ranges for both counts of first-degree criminal sexual conduct are identical,
and the jury made no special fi ndings as to the dates of thos e offenses. The district court
erred by entering convictions on both counts of first-degr ee criminal sexual conduct. See
Minn. Stat. § 609.04, subd. 1( 4) (prohibiting convictions of both the crime charged and
“[a] crime necessarily proved if the crime charged were proved”). Similarly, the date ranges
for both counts of second-degree criminal sexual conduct are identical, and the jury made
no special findings as to the dates of those offenses. The court therefore erred by entering
convictions on both counts of second-degree criminal sexual conduct. See State v. Mitchell,
881 N.W.2d 558, 563 (Minn. App. 2016) (“Section 609.04 bars multiple convictions under
different sections of a criminal statute for acts committed durin g a single behavioral
incident.” (footnote omitted) (quotation omitted)), review denied (Minn. Aug. 23, 2016).
And the date ranges for the first-degree criminal sexual conduct counts overlap with
the date ranges for the second-degree criminal sexual conduct counts. The court erred by
entering convictions on both first-degree criminal sexual conduct and second-degree
criminal sexual conduct. See Minn. Stat. § 609.04, subd. 1(1) (prohibiting convictions of
both the crime charged and “[a] lesser degree of the same crime”). We therefore remand
with instructions to vacate th e formal adjudication of guilt on three of the four counts of
criminal sexual conduct while leaving all of the guilty verdicts in place. See Loving v. State,
891 N.W.2d 638, 649–50 (Minn. 2017) (remanding with instructions to vacate convictions
of unsentenced, duplicative offenses while leaving jury’s guilty verdicts intact).
Affirmed in part and remanded.